Did Democrats blow it on Roe v. Wade?
https://www.vox.com/22814782/roe-v-wade-dobbs-democrats-republicans
Tag: Supreme Court
South Dakota’s Governor Succeeds in Blocking Voter-Approved Marijuana Legalization
“South Dakota voters made history last November by simultaneously approving ballot initiatives aimed at legalizing recreational and medical use of marijuana. The success of the broader initiative, Amendment A, was especially striking because it prevailed by an eight-point margin in a state that is mostly Republican and largely conservative. But thanks to a legal challenge backed by Republican Gov. Kristi Noem, Amendment A was almost immediately tied up in litigation, and last Wednesday the South Dakota Supreme Court definitively overturned it, ruling that the measure violated the “single subject” rule for constitutional amendments.”
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“State legislators proved more willing to set aside their personal views on marijuana in deference to the policy preferred by voters. “In my mind, [legalization is] inevitable because we’ve already seen the support from the public,” Senate Majority Leader Gary Cammack said after Klinger’s decision. “I didn’t vote for recreational marijuana, but my constituents did,” added Greg Jamison, another Republican senator. “Rarely do we get a chance to enact a law and not for sure know what our constituents think of that. Here we know.”
In response to such comments from members of her own party, Noem threatened to veto any legalization bill the legislature might decide to pass. Noem later suggested she might be open to decriminalizing low-level marijuana possession. Possessing two ounces or less is currently a misdemeanor punishable by up to a year in jail and a maximum $2,000 fine.”
Biden’s Plan B for the climate crisis, explained
“If Congress fails to enshrine key climate policies as federal laws, Biden’s Plan B includes executive orders and major regulations from the Environmental Protection Agency, the New York Times reported.
The problem is that executive actions aren’t an ideal substitute for federal laws, and may last only as long as Biden’s presidency. EPA regulation also “tends to lag [behind] the technological realities,” meaning it may only modestly nudge the economy in a new direction, Jesse Jenkins, an environmental engineering professor at Princeton University, told Vox. It’s also vulnerable to intervention by the Supreme Court.”
The Supreme Court finally decides the religious right asked for too much
“under Gorsuch’s approach, the state must exempt religious objectors because it has a single exemption — again, for people who could suffer serious health consequences if they receive the vaccine.
Had Gorsuch’s approach prevailed, it’s likely that religious objectors would be exempted from nearly any law. Speed limits, for example, typically exempt police, ambulances, and other emergency vehicles responding to an emergency. Even laws banning homicide typically contain exemptions for self-defense. (Although, in fairness, Gorsuch concedes that a religious exemption is inappropriate when the “challenged law serves a compelling interest and represents the least restrictive means for doing so.” So Gorsuch probably would not allow religiously motivated murder.)
In any event, Gorsuch’s view did not prevail — though it is far from clear that it will not receive five votes in a future case. Though Justice Barrett joined a majority of the Court in allowing Maine’s vaccine mandate to take effect, her opinion (which is joined by Justice Brett Kavanaugh) clarifies that she did so on exceedingly narrow grounds.
Essentially, Barrett argues that the Supreme Court has discretion to decide which cases it wants to hear. And her opinion suggests that she would exercise her discretion to not hear this particular case.”
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“For now, at least, the bottom line is that Maine’s vaccine mandate is in effect. Public-facing health care workers will need to receive the Covid-19 vaccine unless they have a medical excuse.”
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“it’s not a huge loss for the religious right. But the decision in Does suggests that there is, at least, some limit to the Court’s willingness to carve out legal exemptions for religious conservatives.”
The Supreme Court’s Conservative Revolution Is Already Happening
“in many ways, the Supreme Court’s conservative revolution is already here: The court hasn’t been this ideologically tilted in almost 100 years. Capturing the full breadth of this shift is difficult because the metrics we use to measure the court’s ideology are driven by hard-to-track factors like the types of cases the court takes up. For the first time in decades, too, a single justice isn’t holding the reins. The conservative justices can now assemble a majority more easily, giving them the power to push the court even further right.
That power may take some adjusting to — for both the public and the justices. The past term showed that there will still be plenty of room for disagreement on the precise path forward. One example was a high-profile religious liberty case where the most conservative justices took their fellow GOP appointees to task for issuing a ruling they saw as too timid. And the main priority of the liberal justices, now distinctly in the minority, appeared to be damage control. Moreover, some big decisions were taking place outside the public eye.”
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“According to the Supreme Court Database, 60 percent of all decisions last term went in a conservative direction, as well as 59 percent of close decisions — which is to say, decisions in which the minority side had three or four votes. That makes the court’s previous term the most conservative term since 2008”
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“Increasingly, too, the justices are making big decisions without fully explaining their reasoning, through cases that have emerged through the court’s “shadow docket,” where the justices are asked to rule quickly, without the extensive legal briefing or oral arguments that happen in normal Supreme Court cases. Sometimes, these orders are only one sentence long. And the justices don’t have to say how they voted or why.
Normally, this swiftness and secrecy isn’t especially newsworthy because the rulings that come out of the shadow docket just aren’t that significant. But that has changed in recent years. Some of the court’s biggest rulings in the past year — including its decision to strike down COVID-19 restrictions on religious gatherings and its decision to allow a highly restrictive abortion law to go into effect in Texas — came out of the shadow docket.
The shadow docket is very difficult to track, for obvious reasons — it’s hard to know what the justices are even doing.”
The nihilism of Neil Gorsuch
“Neil Gorsuch was ready to blow up the US housing market over a minor legal violation.
The case in front of the Supreme Court was Collins v. Yellen (2021), which had at its center the Federal Housing Finance Agency (FHFA), an obscure body that oversaw hundreds of billions of dollars’ worth of transactions intended to stabilize the housing market after the 2008 recession. The FHFA is led by a single director whom only the president can fire “for cause.” The plaintiffs in Collins v. Yellen argued the president must have unlimited power to fire the agency’s head, citing the Supreme Court’s 2020 ruling in Seila Law LLC v. Consumer Financial Protection Bureau (CFPB).
But under the Collins plaintiffs’ arguments, it also followed that if the FHFA head was fired, every action the agency had taken since its creation in 2008 should be declared void — a truly radical prospect. That argument won very little favor from the justices. In June, the Court handed down a relatively modest opinion that gave President Joe Biden (and all future presidents) the power to fire the FHFA director without reversing the agency’s past work.
But Gorsuch would have none of it.
In a partial dissent, Gorsuch complained that his colleagues were too spooked by the prospect of “unwinding or disgorging hundreds of millions of dollars that have already changed hands” (an underestimate of the amount of money at stake by several orders of magnitude). The proper approach, Gorsuch opined in Collins, was to declare the FHFA’s actions “void.”
If Gorsuch had gotten his way, 13 years of work and hundreds of billions of dollars’ worth of transactions would have been unraveled, possibly delivering a shock to the mortgage-lending industry similar to that of the 2008 crisis — or even sending the world economy into a tailspin.
And yet, for Gorsuch, the potential consequences were irrelevant to how the Court should rule.
It wasn’t the only case this term where Gorsuch brushed aside worries about widespread disruption that could have done tremendous harm to millions of people.”
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“The lodestar of Gorsuch’s rhetoric about how judges should interpret the law is “textualism,” which he described in a 2020 book as the idea that judges’ sole task when interpreting legal texts is to determine “what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.””
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“In reality, this method rarely lives up to such lofty promises. Many legal texts (including much of the Constitution) are ambiguous and can be fairly read in many ways. And what should a court do if it concludes that a century-old decision — one that millions of individuals and businesses may have relied on for decades — misread the text of a statute? Should 100 years of settled law be upended?
Setting aside textualism’s flaws, Gorsuch’s record on the Supreme Court exposes just how spotty his application of the methodology is. Though his own opinions frequently preach the gospel of textualism, he’s shown no compunction about joining other justices’ opinions that treat the text of a statute as merely optional.”
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“Gorsuch is also perfectly willing to follow anti-textualist precedents that yield conservative results.”
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“Gorsuch’s commitment to textualism can be little more than hot air. He is a selective textualist, who frequently evangelizes in favor of this method of interpretation but often abandons it in cases that reach a conservative result.”
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“When Gorsuch has the chance to write a majority opinion, in other words, he typically shoots for the moon. His jurisprudence shows utter disregard for the norms of an institution he now belongs to, and for the work of generations to come up with a system of law that can manage a pluralistic society. It’s a revolutionary project, breathtaking in its audacity and nihilistic at its core.”
A Good Day for the Fourth Amendment
“In 2019, a California appeals court said a police officer may always enter a suspect’s home without a warrant if the officer is in “hot pursuit” and has probable cause to believe the suspect has committed a misdemeanor.
In June, the U.S. Supreme Court gave that decision the benchslap it deserved. “We are not eager—more the reverse—to print a new permission slip for entering the home without a warrant,” declared Justice Elena Kagan in Lange v. California.
The case originated when a California Highway Patrol officer observed Arthur Gregory Lange repeatedly honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst. The officer followed Lange’s car and switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who said he never saw the officer’s lights in his rearview mirror, entered his driveway and pulled into his garage. The officer parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, followed Lange in, and had him perform field sobriety tests, which ultimately led to a DUI charge.
The state has “argued that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry,” Kagan observed in her majority opinion, which was joined in full by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But that position ran afoul of both SCOTUS precedent and the Fourth Amendment’s common law roots.
“On many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home,” Kagan wrote. “But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.”
The common law origins of the Fourth Amendment commanded the same result. “‘To enter a man’s house’ without a proper warrant, Lord Chief Justice Pratt proclaimed in 1763, is to attack ‘the liberty of the subject’ and ‘destroy the liberty of the kingdom,'” Kagan wrote, quoting from a venerable British common law judgment. “That was the idea behind the Fourth Amendment.”
Writing in a concurrence that reads more like a dissent, Chief Justice John Roberts, joined by Justice Samuel Alito, denounced the majority’s reasoning as “absurd and dangerous,” “hopelessly indeterminate,” and likely to impede necessary police work.
Fortunately, Roberts managed to attract just one other vote. The Fourth Amendment had a good day in court.”
Democrats have a high-risk, high-reward plan to save Roe v. Wade
“Under the modern understanding of the Constitution, a federal law regulating abortion — like other federal regulation of health providers — is unambiguously constitutional.
Congress’s power to regulate is broad but not unlimited. The Constitution lays out a list of powers that Congress is allowed to exercise, such as the power to raise armies or the power to establish post offices.
One of these powers is the ability to enact legislation enforcing rights protected by the 14th Amendment. Both Roe and Casey rooted the right to an abortion in this amendment’s guarantee that no one may be denied “liberty” without due process of law. So, as long as Roe and Casey remain good law, Congress may enact laws protecting abortion rights.
But, of course, the whole reason Democrats want to pass the WHPA is because Roe and Casey are under threat. So Congress cannot realistically rely on its power to enforce the 14th Amendment if it wants to sustain legislation protecting abortion. The Supreme Court is likely to change its understanding of which rights are protected by the 14th Amendment very soon.
Alternatively, the WHPA could also be sustained under Congress’s broad power to regulate the national economy. This power derives from two provisions of the Constitution, which permit Congress to “regulate commerce … among the several states,” and to “make all laws which shall be necessary and proper for carrying into execution” this power to regulate commerce.
As the Supreme Court explained in Gonzales v. Raich (2005), Congress may use its power over national commerce to regulate any “economic ‘class of activities’ that have a substantial effect on interstate commerce.” The Court’s decisions permit federal laws regulating landlords, family farmers, and other businesses and professionals that primarily serve local consumers. They permit federal regulation of abortion.
Abortion is a medical procedure that is provided by professionals, who typically charge a fee. Some of these doctors travel across state lines to provide this service. They are trained at medical schools all over the country, perform their services in clinics funded by donors from other states, use medical equipment manufactured in other states — you get the idea.
Abortion, in other words, is an economic activity that has a substantial effect on interstate commerce. So, under Raich, Congress could pass a law protecting abortion rights.
But this modern understanding of the Constitution isn’t exactly beloved by conservatives. And if Democrats pass a law like the WHPA, a Supreme Court dominated by Republican appointees might overrule Raich — or, at least, limit it, potentially doing considerable violence to Congress’s ability to provide other legal protections in the process.”
Critics of the SCOTUS Decision Against the CDC’s Eviction Moratorium Might Miss the Rule of Law When They Need It
“According to the CDC’s reading of the Public Health Service Act, the Court noted, it has “broad authority to take whatever measures it deems necessary to control the spread of COVID–19.” That includes the authority to override rental contracts and property rights across the country, since the CDC argues that evictions could promote the spread of COVID-19 by forcing people to live with friends or relatives, in homeless shelters, or in other “congregate or shared living setting[s].” But as the Court noted, “it is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit…beyond the requirement that the CDC deem a measure ‘necessary.'”
The Court offers some illustrative hypotheticals: “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?” But those examples only scratch the surface.
If the CDC’s understanding of its powers were correct, it would have the authority to make any of its frequently contentious COVID-19 recommendations, including its advice on mask wearing by K–12 students and the general public, mandatory. Rather than focus on people who move because they are evicted, it could simply decree that no one is allowed to change residences. It could require every American to be vaccinated against COVID-19. It could unilaterally impose nationwide shutdowns of businesses and order every American to stay home except for “essential” purposes. It could prescribe fines and jail sentences for people who defy those requirements, as it has with the eviction moratorium. And it could do any of these things not just in response to COVID-19 but also to control the spread of any communicable disease, including the seasonal flu and the common cold.
Where does the CDC think it gets this limitless discretion? The Public Health Service Act, which Congress approved in 1944, says “the Surgeon General, with the approval of the Secretary [of health and human services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” It adds that “for purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”
A regulation delegates that authority to the CDC, which has heretofore used it rarely and for narrow purposes such as banning the sale of small turtles that carry salmonella. But last fall, when it first imposed its eviction moratorium, the CDC claimed to discover previously unnoticed dictatorial powers. In the CDC’s view, “other measures” includes literally anything it claims will help reduce the spread of communicable diseases.
Two-thirds of the federal courts that have considered the issue, including the U.S. Court of Appeals for the 6th Circuit, have said the CDC does not have the power it claims. They generally have taken the view that “other measures” must be similar in kind to the specific examples listed in the statute.”
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“The Court adds that “even if the text were ambiguous, the sheer scope of the
CDC’s claimed authority…would counsel against the Government’s interpretation,” since “we expect Congress to speak clearly” when it means to authorize powers of “vast ‘economic and political significance.'””
The Supreme Court’s stunning, radical immigration decision, explained
“It is not at all clear what the Biden administration is supposed to do in order to comply with the Court’s decision in Biden v. Texas. That decision suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations.
One of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs. The decision in Texas defies this principle, fundamentally reshaping the balance of power between judges and elected officials in the process.
The central issue in Texas is the Biden administration’s decision to terminate former President Donald Trump’s “Remain in Mexico” policy, which required many asylum seekers arriving at the United States’ southern border to stay in Mexico while they awaited a hearing on their asylum claim. Although the policy was formally ended under Biden, it hasn’t been in effect since March 2020, when the federal government imposed heightened restrictions on border crossings due to Covid-19.
Nevertheless, a Trump-appointed federal judge, Matthew Kacsmaryk, ordered the Biden administration to reinstate the policy, and he gave the administration exactly one week to do so. The Supreme Court’s order effectively requires the administration to comply with Kacsmaryk’s order, at least for now, with one vague and confusing modification.
Technically, this case is still on appeal. The Biden administration requested a stay of Kacsmaryk’s order while its appeal is pending. But the administration is now under an immediate obligation to comply with that order.
And the Supreme Court’s decision to deny the stay bodes very ill for the ultimate outcome of that appeal. The Court did not disclose every justice’s vote, but liberal Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan did disclose that they dissent.”
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“Kacsmaryk’s opinion, it should be noted, was dead wrong. It effectively claimed that a 1996 law required the federal government to implement the Remain in Mexico policy permanently. That policy didn’t even exist until 2019, so the upshot of Kacsmaryk’s opinion is that the government violated the law for nearly a quarter-century and no one noticed.
The Supreme Court does not go that far. Instead, it suggests that the Biden administration did not adequately explain why it chose to end the Remain in Mexico policy. In theory, that’s a solvable problem. Secretary of Homeland Security Alejandro Mayorkas could comply with the Supreme Court’s decision by issuing a new memo providing a more fleshed-out explanation.
Except that the Supreme Court does not even offer a hint as to why it deemed the Biden administration’s original explanation insufficient.”
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” without an explanation as to how it could comply with the conservative justices’ understanding of the law, the administration is left with two untenable choices. The first is that it can try to guess what, exactly, the justices want them to say in a new memo explaining its policy. The second is to make what could be a futile effort to reinstate Trump’s policy.”
“Mexico is likely to have strong opinions about this abrupt policy shift. The original Remain in Mexico policy came about only after the United States secured Mexico’s cooperation, and it is unlikely that the United States could successfully reimplement this policy without Mexico’s permission.
So one of the upshots of the Supreme Court’s order is that the administration must now go, hat in hand, to the Mexican government and beg them to cooperate again.
For decades, the Supreme Court warned the judiciary to avoid “unwarranted judicial interference in the conduct of foreign policy.” Judges, the Court explained in Kiobel v. Royal Dutch Petroleum Co. (2013), should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”
Apparently that’s all out the window now: Unless the Biden administration can figure out what it needs to put in a new memo explaining its policy, it must reopen diplomatic negotiations with Mexico (and possibly with Central American nations whose citizens are seeking asylum in the United States) in order to reinstate a policy that it does not agree with, and that it believes, in Mayorkas’s words, will leave untold numbers of immigrants without “stable access to housing, income, and safety.””
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“The decision upends the balance of power between the elected branches and the judiciary. It gives a right-wing judge extraordinary power to supervise sensitive diplomatic negotiations. And it most likely forces the administration to open negotiations with Mexico, while the Mexican government knows full well that the administration can’t walk away from those negotiations without risking a contempt order.
With this order, Republican-appointed judges are claiming the power to direct US foreign policy — and don’t even feel obligated to explain themselves.”