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Recent Posts
- Election Night Preview — Part Six (Post-Midnight Eastern)
- Election Night Preview — Part Five — The Local News and the West Coast (11:00 To 11:59 P.M. Eastern)
- Election Night Preview — Part Four — Prime Time Hour Three (10:00 to 10:59 P.M. Eastern)
- Election Night Preview — Part Three — Prime Time Hour Two (9:00 To 9:59 P.M. Eastern)
- Election Night Preview — Part Two — Prime Time Hour One (8:00 to 8:59 p.m. Eastern)
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Tag Archives: Justice Ruth Bader Ginsburg
The Texas Abortion Law and the Supreme Court
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.
Posted in Judicial
Also tagged Abortion, Chief Justice John Roberts, Justice Brett Kavanaugh, qui tam, stay, Supreme Court, temporary injunction, Texas
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The Ginsburg Vacancy and the Future of the Supreme Court
The death of Justice Ruth Bader Ginsburg occurs when our country was already at a crossroad. By historical accident, there has been a “Republican” majority on the court since 1972. For the past thirty years, there has been a movement among conservative interest groups and supportive lawyers to rewrite the Constitution to undermine the protection given to constitutional rights during the Warren Court and to undermine the legal consensus that arose from the New Deal era.
The Constitution says very little about the structure of the judiciary. It says that there will be a Supreme Court with some cases on which the Supreme Court has original jurisdiction. For the most part, however, the Constitution left it to Congress to fill in the details. And, while the justices are appointed by the President with the “advice and consent” of the Senate, the Constitution is silent on the details of the confirmation process.
The latter issue is currently front and center. When there was a vacancy in February 2016, Moscow Mitch cited a non-existent Biden rule as barring any confirmation hearing in a presidential election year. This year, Moscow Mitch has put forth a modified version of the rule holding that confirmation hearings are only barred if the Senate is controlled by the opposing party. Of course, that is not a principled rule. It is a rule about power. Namely, that the Senate majority gets to do what it wants regardless of what is in the best interest of the American people.
Posted in Judicial
Also tagged 2020 Election, History of number of Justices, Supreme Court, Supreme Court Nomination History
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