Discussion for article #246775
I find the Texas notion that it’s OK to impose an undue burden as long as you only impose it on a small part of the population, uh, interesting. I wonder what other small parts of the population that principle could be applied to.
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Indeed. That’s a pretty amazing statement on its face. If Kennedy has an ounce of decency and logic left, this law gets tossed out on a 5-3 decision, and maybe even more if Roberts really cares about his legacy. This, and the related laws passed in other states are disingenuous at best, and as the line of questioning about forcing surgical abortions makes clear, create exactly the opposite results from what they are allegedly designed to ensure.
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Since Kennedy is clueless, then how can he offer clues?
“As Keller struggled to answer her question, Alito jumped into to take the discussion in a different direction.” An example of Alito’s impartiality?
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Good on Kennedy for not offering clues to his views. He shouldn’t. Justices should be referees, not offensive coordinators. They shouldn’t be telegraphing to their hunting buddies over scotch and cigars which lawsuits to have their lawyers file when, where and how, to have the best odds of ruining the country one 5-4 at a time.
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We know how Alito and Thomas will vote: they’ll vote to uphold the law.
We also know how Breyer, Ginsburg, Kagan and Sotomayor will vote: they’re going to vote to overturn.
Roberts is likely to vote with Alito and Thomas.
The only vote in play is Kennedy’s although Kennedy could bring Roberts along with him so Roberts can control the opinion. Kennedy and his clerks have already read the filings: I think Kennedy already knows how he’s going to vote. I believe he didn’t have much in the way questions because he didn’t see any point in tipping his hand. I am not at all sure if that is good or bad.
The unusual thing was that Alito jumped in save Keller’s ass. We’ve seen Justices jumping in to toss a floundering lawyer a lifeline before. We’ll know when we know.
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I highly recommend TPM’s next hire be a copy editor.
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It is actually somewhat interesting. If Kennedy is going to limit the TX law I really do wonder what Roberts does. If he thinks a Dem will be elected and that he’ll be stuck with a 5-4 minority he might join the liberals and Kennedy in a narrow 6-2 decision.
Slate has a very good article about today’s proceedings, a key section of which I’ll post here:
Seconds after Texas Solicitor General Scott Keller began to speak Wednesday morning, Justice Ruth Bader Ginsburg zeroed in on the “undue burden” question—quickly and mercilessly knocking Keller off balance and setting the tone for the rest of his nearly 40 minutes at the lectern. Ginsburg asked Keller how many women would live 100 miles or more from a clinic if the Texas law went into effect. About 25 percent, he responded—but that didn’t include the clinic in Santa Teresa, New Mexico, just over the border from El Paso. The existence of this clinic featured heavily in the 5th Circuit’s decision to uphold the Texas statute; it asserted that the law did not impose on “undue burden” on abortion-seeking El Paso women, because they could simply cross state lines for the procedure.
“That’s odd that you point to the New Mexico facility,” Ginsburg said, in a clear and firm voice. New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would—standards which, Texas claims, are absolutely critical to protect women.
“So if your argument is right,” Ginsburg continued, “then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right.”
“Well,” Ginsburg concluded, with just a hint of pique in her voice, “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?”
RBG is amazing and the Kagan and Sotomayor did well today, too.
Here’s the link to the story: http://www.slate.com/blogs/the_slatest/2016/03/02/ruth_bader_ginsburg_asks_the_most_important_question_of_oral_arguments_in.html?wpsrc=sh_all_dt_tw_top
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