Tag Archives: Abortion

The Supreme Court — Faux Originalism and the Reactionary Ascendency

By tmess2 | Published June 26, 2022

This is a hard week to post about.  There were three opinion days this week.  And each one featured a new decision that ripped at the fabric of modern society and featured a rewriting of history in the service of originalism to allow the reactionary members of the court to push through an agenda that lacks electoral support based on a misreading of the Constitution.

Tuesday started off the week with Carson vs. Makin, the Maine school voucher case.   Traditionally, there have been two prongs to the Free Exercise Clause — one prong involves the power to follow one’s religious beliefs without penalty and the other prong involves discrimination based on religion.  Posed against the Free Exercise Clause is the Establishment Clause which forbids the government from establishing an official religion or religions.  Traditionally, the big fights have been in the “no penalty” prong.

On the penalizing religion prong, the battle has always been the reasonableness of the proposed accommodations measured against the significance of the government interest.  And in the late 1980s, after one of the low points of religious freedom in which Justice Scalia basically limited this prong to the right to have beliefs without penalty for those beliefs (but no right to act on those beliefs), Congress overreacted by enacting the Religious Freedom Restoration Act which went to the other extreme.  The RFRA and the Free Exercise Clause are on the verge of being interpreted as allowing people to claim religious exemptions from civil rights laws.  And we are likely to see another case in this prong later this week allowing a coach at a public school to pray publicly while on the job at a school function. Continue Reading...

Posted in Civil Rights, Judicial | Also tagged , , , , Comments Off on The Supreme Court — Faux Originalism and the Reactionary Ascendency

Supreme Court — End of Term Preview 2022

By tmess2 | Published June 12, 2022

Normally, by this time of the year, the Supreme Court term is coming into focus.  With three weeks to go, typically, there is one or two cases left from the Fall.   While there are always question marks, it is possible to try to figure out results in the key case by who is in the running for getting the remaining opinions from a month.

This year is different.  There are still 29 opinions outstanding out of 62 cases.  While there have been years with more opinions outstanding heading into the last three weeks, those years were back when the Supreme Court was hearing a lot more cases per year.

To date, almost all of the opinions have been in cases that (other than the parties) mostly interested those practicing in that field.  The biggest attention getting case was the decision reinstating (at least for now) the death penalty against the surviving Boston Marathon bomber.  The legally biggest case of the year so far also came from Boston in a Free Exercise/Free Speech case involving Boston’s refusal to let a Christian group use one of the city’s flagpoles in connection with an event even though it routinely gave such permission to nonreligious groups.  That decision may be an indicator of the likely result in some of the remaining cases, but it was merely a continuation of the recent trend in Free Exercise cases. Continue Reading...

Posted in Judicial | Also tagged , , , , , Comments Off on Supreme Court — End of Term Preview 2022

A background on the issues in Dobbs vs. Jackson Women’s Health

By tmess2 | Published December 5, 2021

The Supreme Court heard arguments on Wednesday in a case involving Mississippi’s law banning pre-viability abortions after fifteen weeks.  For those not familiar with court terminology, here is a brief primer on the legal terminology that you might hear during coverage of this case.

SUBSTANTIVE DUE PROCESS & THE RIGHT TO PRIVACY

The Bill of Rights contains a rather extensive list of “enumerated” rights.  It also contains a catch-all provision in the Ninth Amendment.  Both the Fifth Amendment and Fourteenth Amendment contain a due process clause which forbids the denial of liberty without due process of law.  Over the years, the courts have had to deal with the limits of the rights contained in the Bill of Rights.  For example, the First Amendment expressly covers two forms of communication — oral (free speech) and written (free press).  But that leaves issues about other forms of expressive conduct (is dancing or painting speech) and whether press was limited to news or does it cover other written publications.  Similarly, there is debated about the due process clause — does it merely require appropriate proceedings (laws being properly passed, cases being properly head) before a person is deprived of their freedom (i.e. goes to prison) or does it also provide substantive protections against the passage of laws that eliminates rights. Continue Reading...

Posted in Civil Rights, Judicial | Also tagged , , , , , , Comments Off on A background on the issues in Dobbs vs. Jackson Women’s Health

Senate Bill 8 and the Supreme Court

By tmess2 | Published October 31, 2021

This week, the Supreme Court will take up issues related to Texas’s new abortion law — Senate Bill 8.  There are several key things to know about this case.

First, this case has been expedited.  The Supreme Court turned down the request for a stay and granted review on the  “merits” on October 22.  The  Supreme Court ordered the parties to file the written arguments on the merits by October 27.  The Supreme Court will be hearing argument on November 1, just ten days after granting review.  By contrast, the “normal” schedule set forth in the rules (which is typically condensed somewhat for cases in which review is granted between October and January) establishes a minimum of 115 days between the grant of review and argument.  This expedited hearing, probably represents a compromise between the Justices that wanted to reinstate the trial court’s stay of the law and those that wanted to take this case in the ordinary course of Supreme Court review.

Second, the Supreme Court permitted the parties to bypass the Court of Appeals.  While the Fifth Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) has issued rulings on the stay entered by the trial court, it has not yet ruled on the merits of the case.  The Rules of the Supreme Court permit parties to ask to bypass the appellate court (a petition for certiorari before judgment), but the Supreme Court rarely grants that request.  Again, this decision probably represents a compromise between those that wanted to grant the stay (which would have been in effect until the Fifth Circuit decided the case) and those that wanted things to proceed in the ordinary course of review.   It may also reflect the view that the Supreme Court has of the Fifth Circuit.  There are several circuits known for their tendencies in litigation.  There are three or four perceived to be ultra liberal with the Supreme Court needing to frequently correct them.  The Fifth Circuit has the same reputation for being ultra conservative and has been frequently reversed on abortion cases.  Given this reputation, the Supreme Court may have decided that there was no need to see what the Fifth Circuit would write. Continue Reading...

Posted in Judicial | Also tagged , , , , , , Comments Off on Senate Bill 8 and the Supreme Court

Supreme Court October Term 2021 — Part II

By tmess2 | Published September 26, 2021

Last week, we took a look at the upcoming Supreme Court Term with a focus on the cases scheduled for the October and November argument sessions.  This week, we take a look at the cases set for December and those with no argument date yet (most likely January) with some comments on pending applications.

The big case on the December docket is Hobbs v. Jackson Women’s Health Organization — the Mississippi abortion case.  Putting the media hype to the side, the technical issue is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”   Roe and Casey both allow some pre-viability restrictions on abortion.  What they do not allow is a pre-viability ban on all abortions.  The real issue for this case will be how the majority tries to chip away at Roe and Casey to allow more restrictions on abortion.  My expectation is for some plurality opinion written by the Chief Justice or Justice Kavanaugh that makes it likely that the lower courts will nominally uphold Roe and strike down this statute while making it easier for states to regulate abortion in ways that will make it harder for women to get abortions in red states.

There are a couple of cases involving Medicare reimbursements.  One of these two cases involves issues of Chevron deference — the principle that, if a statute is ambiguous, courts should defer to the interpretation made by agency charged with applying the statute.  Conservatives have been chipping away at Chevron deference for many years.  The typical approach has been to use the tools of statutory construction to find that the statute is not ambiguous.  In this approach, Chevron deference is a tie-breaker at the end of the interpretive process, and you rarely get a tie at the end of the interpretive process. Continue Reading...

Posted in Judicial | Also tagged , , , Comments Off on Supreme Court October Term 2021 — Part II

Supreme Court October Term 2021 Preview — Part I

By tmess2 | Published September 19, 2021

Once again, it’s that time of year.  Every year, the Supreme Court starts a new term on the first Monday in October.  This is the first full term for the new alignment of justices.  While one term is not enough to predict the future, it seems that we have a 2-3-1-2-1 court with Justices Thomas and Alito on the far right with the three Trump justices (it is unclear where they line up and there are some weird issues where they flip) on the right,  Chief Justice Roberts on the center-right, Justices Breyer and Kagan on the center-left and Justice Sotomayor on the left.

As noted in pervious years, the Supreme Court follows a routine during their sittings of four week cycles (a/k/a argument sessions).  In Week 1, the Supreme Court issues an “order list” on Monday , holds arguments on Monday, Tuesday, and Wednesday, and meets in a conference on Friday.  The same thing occurs in Week 2.  In Week 3, there is an order list issued on Monday.  Finally, in Week 4, the Supreme Court meets in a conference on Friday.  At the conference, the Supreme Court reviews that weeks arguments (if any) and takes a tentative vote on each of the cases.  Based on that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) gets to decide which justice gets the opinion.  Also at the conference, the Supreme Court reviews some of the pending petitions for certiorari (the formal name for an application seeking Supreme Court review of a lower court decision).  (If a justice believes that an application potentially should be granted, it is added to the agenda for the weekly conference.  If no justice believes that an application should be granted, it is denied.)  During the first half of the term, the Supreme Court tends to announce grants of certiorari immediately after the conference to give the parties three more days to complete their written legal arguments (called briefs).   The Monday order list includes any grants not previously announced, some summary reversals (which is supposed to be limited to lower court decisions that are so clearly wrong that further argument is not needed), and, mostly, denials of certiorari.  As noted above, most cases are denied at the initial conference (and the Supreme Court website contains a feature that allows you to run a docket search on a case to see its current status).  In recent years, if the Supreme Court is interested in a case, the justices have typically “relisted” the case for a second conference to make sure that there is no procedural flaw that will prevent consideration of the main issue.  While the Supreme Court typically has a four-week cycle, the December and January sessions tend to have a six week cycle (to push the January sitting past New Year’s Day and to get the February session past the worst part of winter).   If there are opinions on argued cases, they can be announced at any time but usually are announced immediately before the Tuesday and Wednesday arguments.    The Supreme Court calendar features seven argument sessions.  After the last argument session, May and June are spent finalizing the remaining opinions from the year.  After the Supreme Court releases its last opinion, they recess for the summer.  Even during the summer recess, there are still some orders — periodic order lists addressing motions for rehearing (which are routinely denied) and miscellaneous orders on emergency application).

As noted above, during the argument sessions, there are six days set for argument (unless a holiday falls on one of those six days).  On a typical day, there are two arguments (of approximately one hour each) in the morning.  Rarely, there are additional afternoon arguments.  More often, there is only one argument on a day.  The argument docket for a month tends to be released approximately two months prior to the argument.    There are currently nine cases set for October and nine cases set for November. Continue Reading...

Posted in Judicial | Also tagged , , , , , Comments Off on Supreme Court October Term 2021 Preview — Part I

The Texas Abortion Law and the Supreme Court

By tmess2 | Published September 5, 2021

As is typically the case with legal news, it is very possible to follow the main stream media and get a very inaccurate perception of what is happening in the courts.  This misreporting isn’t intentional, it’s just that most reporters are not lawyers and thus miss the details that matter.  This past week, the United States Supreme Court denied a stay application related to a new Texas statute that bars abortion after the sixth week of a pregnancy and allows private individuals to enforce that bar by filing a civil case against anybody who aided the woman in getting the abortion — with the remedy being a $10,000.00 payment from the defendant to the person bringing the case.  Given the news coverage, I have three comments.

First, most of the impact of the law will come from its nuisance value.  The actual age of a fetus is an estimate.  Barring some other method that gives a more accurate estimate, gestational age is estimated based on a woman’s last menstrual period (which assumes a regular menstrual cycle and not all women have a regular cycle).    Even the woman herself may not know the exact date of conception (unless she only had sex once since her last period).    And in the early stages of pregnancy (and most abortions occur in the first trimester), it is impossible for the average person to know the gestational age of the fetus by simply looking at the woman.  So unless the woman tells her friend who is driving her to the doctor’s office that she is ten weeks pregnant, the friend will have no idea that the gestational age is beyond six weeks.  While I haven’t read the full statute, it seems at first glance that it will be hard for plaintiffs to win.  But, particularly for abortion providers, the new statute will mean that they are regularly in court with significant legal expenses and average people might be reluctant to help their friends given the expense of defending against these claims.

Second, the empowering of private citizens to bring claims on behalf of the government is not new.  The exact way that these cases will work might have some new wrinkles, but there is an established legal procedure known as qui tam (a shortened title for a latin phrase that translate as “he who sues in this matter on behalf of the king as well as for himself”).  As the reference to the king in the translation hints, this procedure is quite old.  Usually, in the U,S., qui tam statutes involve allowing those with inside information to bring fraud claims on behalf of the government.    If certain legal requirements are met, the successful qui tam plaintiff splits the recovery with the government.  Even without the precedent of qui tam, however, it is clear that any legal claim is state action for the purpose of constitutional law which is why libel suits are restricted by the First Amendment. Continue Reading...

Posted in Judicial | Also tagged , , , , , , , Comments Off on The Texas Abortion Law and the Supreme Court

The Confirmation Hearings

By tmess2 | Published October 10, 2020

In the past five years, we have seen the Turtle (Senator Mitch McConnell) go from the unprecedented blocking consideration of a Supreme Court nomination made eight months before an election change into the Hare trying to force an unprecedented vote on a Supreme Court nomination made after Labor Day prior to the election.  While the Senate did not have to approve the nomination of Merrick Garland in 2016, the very rules that the Republicans are relying on now to justify their consideration of Amy Coney Barrett mandated giving Judge Garland a hearing and a vote (at least a procedural vote).   And given the modern procedures, giving Judge Barrett a vote before the election requires cutting the process short.  The simple fact is that conservative Republicans are trying to pack the court.  While, barring some type of miracle, Democrats will not be able to prevent a vote from taking place before the election, there are some issues that should be front and center at the confirmation hearings that will take place this week.

At the top of the list is health care.  While the nominee will probably try to evade the question, it is important to make crystal clear that — if confirmed on the current schedule — Judge Barrett may be the one vote that removes the current protection for people with preexisting conditions.  In the November argument session, the Supreme Court will consider the constitutionality of the Affordable Care Act.  This case arises from the 2012 decision upholding the Affordable Care Act.  In that decision, after rewriting the law to avoid finding that the Affordable Care Act was authorized by the impact on interstate commerce, the 5-4 majority found that the individual mandate was authorized as a tax.  When the Republican Congress failed to repeal the entire act but did repeal the tax, Texas and other red states filed the current suit alleging that the repeal of the tax also repealed the individual mandate and the rest of the Affordable Care Act.

While Judge Barrett will probably try to avoid talking about the merits of the case (as she will be sitting on the Supreme Court when this case is heard), she should be at least forced to explain her approach to one of the key issues in the case.   That issue is “severability.”  Stripped of legal jargon, severability is about whether one invalid clause in a bill or statute requires the courts to reject the entire bill.  Under most of the recent decisions, there is no plausible basis for the Supreme Court to strike the entire Affordable Care Act because Congress expressly decided to repeal one part and leave the rest intact. Continue Reading...

Posted in Judicial, Senate | Also tagged , , , , Comments Off on The Confirmation Hearings

October Term 2020 — Supreme Court Preview (Part Two)

By tmess2 | Published September 26, 2020

As we saw in Part One, COVID-19 has caused a rather unique set-up for the first two argument sessions of the upcoming term.  October are the cases that would have been argued last term but for COVID-19 requiring the postponement of arguments.  As such, as the more politically significant cases were heard in May, October features very few “political” cases.   On the other hand, highlighted by the on-going attempt of the Republicans to use the courts to undo the Affordable Care Act, November has several very significant cases.

There are two big cases on December’s docket.  First, there is the on-going disputes related to President Trump’s legal troubles.  In particular, Trump’s taxpayer-funded law firm (the Department of Justice) is trying to block the House Judiciary Committee from obtaining grand jury transcripts from the Mueller investigation that might be demonstrate that Trump committed impeachable offenses.  The technical issue is whether the House Judiciary Committee when doing a preliminary investigation into impeachment fits within the limited group authorized by the Federal Rules of Criminal Procedure to access grand jury testimony.

Second, there is a case-involving the Federal Housing Finance Agency (one of the agencies created after the Bush financial market crash of 2008) and whether it is legally-structured.  We saw a similar case this past term involving the Consumer Finance Protection Bureau.  So, even if the Republicans do not manage to get another conservative judicial activist onto the Court before this argument, the odds of a ruling upholding the validity of the restrictions on removal are slim and none. Continue Reading...

Posted in Impeachment, Judicial | Also tagged , , , , Comments Off on October Term 2020 — Supreme Court Preview (Part Two)

Supreme Court — Progressive Pyrrhic Victories and Conservative Triumphs

By tmess2 | Published July 3, 2020

This week the Supreme Court issued five opinions.  Putting aside a case about when [generic term].com can be trademarked, the other four cases represent two big wins for conservatives and two narrow wins for progressives in which the reasoning adopted by the controlling vote — in both cases, the Chief Justice — signals bad news for progressives in future cases.

But first, there are some housekeeping details.  This week’s opinion finished the outstanding cases from January and February.  The only cases left are from May, but we still have eight of the ten cases left.  As a result, it is practically wide open as for as which justice has which case.  Justice Gorsuch and Justice Ginsburg have both authored six opinions for the Court this year (implying that they are probably done, but Justice Gorsuch still has an outside chance at picking up one of the May cases).  Justice Thomas has only authored four opinions for the Court, so he may get two May opinions.  Everybody else appears to be due for one May opinion.

This past week, the Supreme Court issued opinions on the Consumer Finance Protection Bureau, abortion, tax credits for religious schools, and conditions on aid to foreign non-governmental organizations.  In all of these cases, the controlling opinion established rules that conservatives will love, even if they hate the result in the individual case. Continue Reading...

Posted in Judicial | Also tagged , , , Comments Off on Supreme Court — Progressive Pyrrhic Victories and Conservative Triumphs