John Oliver pointed out last week that none of these restrictions apply to birthing centers, even though live birth has a far higher rate of complications. I hope that point made it into the plaintiff’s briefs, and makes it into the oral arguments today. Will be very interested to see if and how Justice Kennedy engages today.
14 Likes
The article states that the best case scenario for pro-choice activists is for the court to deadlock at 4-4. It seems to me the best case scenario is for Kennedy to side with the liberals and shut down these laws, even if it’s fairly unlikely he’ll do so. Am I missing something here?
10 Likes
Edit please! Probably 2 sentences.
In the case, Whole Woman’s Health v. Hellerstedt, pro-choice forces are asking the court to strike down a Texas law mandating myriad restrictions that have a closed a large swath of its clinics can still score a victory by winning over Justice Anthony Kennedy to their side and stemming the tide of abortion restrictions passed in red states in recent years.
This exposes the fatal flaw in the Senate majority’s so-called strategy. Or moronstrosity, however you spell it.
The default, while the court is tied, is to the standing decision of the Circuit Court, applicable to its jurisdiction. Justice Kennedy, is strongly defensive of the Court’s power and predominance, and will make compromises with the left side of the room. As Tierney wrote yesterday, rational corporate litigants have made their analysis and are settling and declining to appeal.
The Senate strategy, if successful would inflict harm on one of our arrangements’ most conservative and powerful institutions, the Courts. This is senseless from the RIght’s point of view.
Meanwhile Democratic challengers from Illinois to Pennsylvania tie this unpopular and idiotic strategy to its widely abhored author, the Turtle from Kayn’t ucky.
The abortions rights litigation is the most important of the docket, but that docket was loaded up with end-of-life presents for the Scalia Majority to expand the territory of right-wing jurisprudence. Alas, as they say, these cases are now over-ripe, rotting in the springtime sun.
Popcorn! Who has the popcorn franchise? Real butter on mine, please, and light on the salt.
6 Likes
Does anyone know what the significant differences were between the 5th and 7th Circuit rulings?
I place decent, at least hopeful, odds on Kennedy doing exactly that (no doubt in exchange for concessions somewhere). This may become the Kennedy Court for a term or so.
My lawyer took Constitutional Law from Kennedy at McGeorge. He described him as the smartest and kindest (but tough) person he had ever met, with strong views (standard for a judge, sez a judge’s son) on the prerogatives of the Bench. Hung decisions, leaving in place Circuit Court decisions (and tending to support pre-Scalia law), are deeply damaging to the Court. Kennedy has always been a compromiser and negotiator. I’ll go out on a limb and predict that he will do so first in Whole Woman’s Health, as the great hulk of American jurisprudence swings helm significantly to the Left/West.
I cannot believe that Kennedy will sit still while his, our, Ninth Circuit pumps out a dizzying production of innovative and often contradictory law from its disputatious and fractured colllegium. Not to diss the DC and 2nd (NY) Circuits, which join the 9th in modern patterns of partisan territorial warfare, leading to lots of Supreme Court business. I blame Scalia (Roberts is a non-entity compared to Scalia, Kennedy, and any four randomly picked members of Ream Left(ish)).
2 Likes
President Obama is to confer in the Oval Office on Tuesday with Senator Mitch McConnell of Kentucky, the Republican majority leader, and Senator Charles E. Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, about filling the Supreme Court vacancy left by the death of Justice Antonin Scalia. If everyone maintains previously stated positions, it might be a very short meeting.
Reid, Leahy and Biden will be at the meeting as well.
6 Likes
All of these scenarios hold so long as Ginsburg is sitting behind the bench. If she goes, and she is old than Scalia and has had a cancer in the last 5 years, the whole situation will reverse.
3 Likes
I agree. Kennedy seems to be frequently in favor of making abortion difficult but possible. These laws go too far for his previous positions. I think he will vote with the liberals for a 5-3 outcome.
4 Likes
Say what you will, I’m glad Randy Newman’s fear that the Scalia Court would outlive him didn’t come to pass.
8 Likes
<clapping, on my feet, clapping> BRAVO!
3 Likes
I agree - Kennedy seems to reason against undue burden and what are arguably unique rules designed specifically to undermine constitutional rights (as you can tell, I am certainly not an attorney!)
So I remain optimistic that Kennedy will see these laws for what they are and separate out his own personal views regarding abortion.
5 Likes
JFK had to make a major speech and assure the citizens of the U.S. that he would not follow the Catholic Church in his decisions. Scalia’s rulings are all straight in order to what the conservative Magisterium preach, not what is there in the “living and breathing” Constitution of the United States. Of course, when you believe that the Constitution is a document written 250 years ago and all law is to be defined as such, then I guess we just all need to grab our muskets and fight those heathens who are trying to take away our cabins and women that are helpless.
4 Likes
My prediction: Kennedy will sign on to a slightly-liberal decision here. From a political standpoint, he can:
-
Leave this as a no-decision, which will then come back to the court in toto in a year or two when there is a true moderate or perhaps even liberal filling the chair Scalia vacated and end up as a striking pro-choice decision perhaps reversing much of the “progress” he made against Roe in Casey.
-
Join a liberal-written decision which retains some of the Casey constructs but generally knocks down a large part of the obstructionist possibilities tried in Texas and elsewhere.
I think that if the liberal half of the court lets him, he’ll choose (2). Which really puts it in their court: do they want a decision which helps a lot of women right now and stops a right from being abridged, or do they play politics and bet on the likelihood of a more liberal compatriot joining the bench in short order, to further the cause more in the long run by sacrificing womens’ rights in the short run. My gut feel is that they will play ball with Kennedy and entice him over to their side so they can help women out right now in the present; there may yet be another case later on to further defang Casey, but at least today they could dramatically improve the lives of women in vast swathes of the country.
But, an interesting one to watch, no doubt!
6 Likes
And now to get it nationally recognized, unless there is a 5-3 vote against the anti-abortionists (which would be best), they have to do it all over again. Texas will still have to put up with this onerous decision if it’s only 4-4, but at least the rest of the nation may be spared. And how ironic that Scalia passed in Texas–perhaps the wealthy corporations and individuals courting favorable Court decisions might think twice before subjecting elderly justices to long plane trips that might jeopardize their health (although without an autopsy we will never be sure exactly what was the cause of death for Scalia, but long unnecessary plane trips were likely a poor decision).
1 Like
Yeah, too true. Regardless of who Obama nominates, it should not be a Catholic. We have too many on the court.
2 Likes
It is a bit strained and could have used another pass through the editor machine. But, essentially it is saying that even if there is a “losing” decision here for the pro-choice crowd, that “losing” decision would have to be so very fangless that it would gain the vote of one of the “liberal” side of the bench - Ginsburg, Breyer, Sotomayor, or Kagan - in addition to Kennedy of course. Anything “incendiary” would not pass muster to get one of them to vote for it.
IMHO, as I said below/above, it is more likely that Kennedy swings if there is anything other than a split decision, and Kennedy swinging would mean a “win” for the pro choice crowd but concessions made to the Casey constructs which will take some of the winds out of those winning sails.
3 Likes
Can you have these articles without the picture of the Repulsive Party legal thug. It turns my stomach.
1 Like
ALL of the SCOTUS “conservatives” are Catholic - Scalia was too, of course.
Sotomayor is also Catholic. My litmus test for the next jurist is that she/he NOT be Catholic.
3 Likes
Umm, I think what you’re missing is that the article actually states “the best anti-abortion activists can hope for is 4-4 tie”. Or was the article corrected since you commented?
Tierney, do you have thoughts about how possible 4-4 decisions effect jurists decisions (not just this one). Do you think they will be more likely to try and find a majority or if it matters at all?