A smattering of headlines from the past year of Vox, the smartest news analysis site on the web; if there’s something going on that you want explained, accurately, subtly, but accessibly, go to Vox. That goes for science, literature, the performing arts, it’s all there, and it’s free:
This is the latest from their generally none-too-pleased legal analyst, Ian Millhiser:
It’s hard to know where to begin. I’ve had at this miserable Supreme Court before, back when it wasn’t even as miserable, not quite:
That was back in 2018, before we got Amy Coney Barrett, the third SCOTUS appointee of a twice-impeached President who also twice lost the popular vote, and found ourselves saddled with a 6-3 conservative – which is to say radical – majority that will prosecute into the indefinite future its program of catering to the MAGAverse, and granting all the dirty little wishes of a GOP with which they are overtly and transparently in cahoots. It seemed awful enough, back then, as I railed against the prior few years of decisions, which had:
- doomed all gun control that does more than nibble around the edges of the problem by deliberately misinterpreting the 2nd Amendment as a personal right, having nothing to do with raising a regulated militia, no matter what it says (District of Columbia v. Heller)
- granted corporate artificial persons the human right to free speech, while equating free expression with the expenditure of overwhelming sums of filthy lucre in quantities sufficient to swing elections, thus obliterating campaign finance laws (Citizens United v. FEC)
- narrowly failed to repeal Obamacare entirely, but re-defined the law on Medicaid expansion, making it possible for states to opt out (National Federation of Independent Business v. Sebelius)
- shafted unions by empowering employers to deny employees the right to launch class actions as a condition of employment (Epic Systems Corp. v. Lewis)
- effectively allowed discrimination in the delivery of services to the public on the basis of sexual orientation (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission)
- devastated anti-trust legislation by allowing companies to dictate whether middle men can tell consumers there are other options to their own services (Ohio v. American Express)
- gutted the voting rights act on the basis that it wasn’t needed any more because it already worked (like a pre-schooler asking why you need a roof when it hasn’t rained in the living room once in his whole life) (Shelby County v. Holder)
- ratified voter suppression via purging of voting lists (Husted v. A. Philip Randolph Institute)
- ratified voter suppression and election-rigging via partisan gerrymandering (Rucho v. Common Cause)
- ratified Trump’s anti-Muslim travel ban (Trump v. Hawaii)
- screwed unions by prohibiting them from imposing “fair share fees” on workers who refuse to join but reap the benefit of union negotiations (Janus v. AFSCME)
You can see what they’ve been up to since then from all the headlines pasted in above. You gotta hand it to them, they’re relentless, and thoroughly consistent. This is a multi-point agenda, and they’re ticking the boxes. Admittedly, for some reason, they refused to destroy Obamacare and throw tens of millions of Americans off their health insurance – yes, the legal underpinnings of that last gasp GOP stab at mass cruelty were risibly ludicrous, but that usually doesn’t matter – and they shrank from overturning the election and installing Trump back in the White House, maybe because they’re afraid that if they lose all legitimacy something might finally be done about them, or maybe because they reckoned it didn’t much matter, now that they’re all sitting pretty in their 6-3 catbird seats, positioned to judicially enact the MAGA agenda no matter who’s in the White House. Other than those rulings, which duped scores of sensible voters into imagining that the Roberts court was somewhat centrist, for the love of God, (the latest polling shows that the current Court is actually more popular with Democrats than Republicans) (!!!), they’ve been going at it hammer and tongs, and lately they haven’t even been giving reasons.
Just as an aside, have a gander at justice Barrett:
Gee she looks nice, doesn’t she? Like a soccer mom, yeah? Like she’s the friendly PTA woman in your bookclub, and rumour has it that her son is maybe a little sweet on your daughter, and that sounds about right, he’s a fine boy, brought up proper, we should let that one play out and see where it goes, right? Yeah, well, she’s Satan. She’s Beelzebub in pumps.
The mark of the Beast is upon her.
But wait, back up a sec., what do I mean about “not even giving reasons”? Well, SCOTUS renders an increasing number of quite important, and, in effect, substantive rulings from what the American legal community has come to refer to as its “shadow docket”, a term coined by a law professor named William Baude, alluding to the stealthiness with which decisions coming out of the process can be made. It’s an emergency procedure, through which applicants generally seek stays of proceedings or injunctions against enforcement of lower court orders pending higher court appeals, available, for example, when the legal questions are novel, or involve constitutional rights, and the applicant faces irreparable harm of some sort if the ruling stands. The idea is for SCOTUS to preserve the status quo until matters wend their way through the system, potentially landing on their doorstep, thus preventing a bad outcome for the applicant until all legal recourse is exhausted and the merits of the matter are finally determined. In theory, then, speed is essential, and the decision is supposed to be procedural, not substantive – a sort of “everybody hold your horses until we figure this out” measure – and therefore the legal process is streamlined. The usual mountain of legal briefs and extensive oral arguments are dispensed with, and so is the usual detailed written decision which sets out reasons, cites precedent and so on. Often the ruling is just a terse couple of lines, because the effect isn’t supposed to be dispositive.
But it can be. Most notoriously, the Trump administration used emergency applications on the shadow docket 13 times near the end of its term to vacate lower court stays of proceedings so that federal prisoners could be put to death expeditiously – supposedly procedural rulings that were most decidedly dispositive on the merits, being as they snuffed out the lives of the litigants. There hadn’t been any federal executions for 17 years; Trump as much as embarked on a killing spree as he went out the door, and the Court eagerly abetted him, abusing a process that clearly wasn’t meant to produce the sort of crushingly irrevocable outcomes that flow from putting a stop to capital appeals. A similar approach has been taken with regard to other contentious matters, allowing the court to largely skirt public scrutiny and debate while, in effect, deciding on the merits of quite a few very important cases. This is from an American Bar Association discussion paper:
While only eight such applications for emergency relief were filed by the Department of Justice between 2001 and 2017, the Trump administration filed 41 such applications in just four years. Not only has the size of the shadow docket grown considerably as a result, but the types of cases the Supreme Court has been deciding via this emergency relief method have changed as well. The Court has begun resolving politically-charged disputes over the border wall, COVID-19 safety restrictions, and federal executions using the once “anodyne” shadow docket. The rise of the shadow docket has had an immense impact on capital litigation since July 2020, when the DOJ officially restarted federal executions for the first time in 17 years. Throughout the execution spree, the Supreme Court repeatedly vacated stays and injunctions put in place by lower courts via unsigned orders issued in the middle of the night…
As MSNBC pundit Chris Hayes noted on air last week, there’s a chilling Star Chamber feel to the process, which reached what might reasonably have been assumed to be a nadir with the Court’s refusal, in Biden v. Texas, to stay the order of a Texas District Court overturning a Biden administration decision on immigration. Biden had rescinded the Trump/Stephen Miller policy that those seeking asylum at the southern border had to remain in Mexico and fend for themselves while their cases were decided, a typically mean-spirited kick in the teeth of desperately needy and vulnerable migrants, which caused all manner of human misery and death. The District Court ordered Biden’s team to reinstate Trump’s rules, and begin negotiations with Mexico to make the stay in Mexico policy work. In other words, a low-level conservative Trump appointee on the federal bench in Texas was dictating U.S. foreign policy. SCOTUS refused to stay that decision, no reasons, no argument. Technically, the merits are still under appeal, and may eventually get all the way to the top, but in refusing the stay, and upending the status quo, SCOTUS has telegraphed its likely final ruling, and anyway, how long will it be before the White House is able to know their pleasure, prior to which the lower court order stands and must presumably be obeyed? Must Biden, therefore, negotiate with Mexico for the next year or two? What if the negotiations fail – is the Biden administration in violation of the order? What’s a court doing dictating foreign policy anyway, against longstanding tradition? I won’t even bother to go into the lower court’s reasoning (I’ll imbed a link that explains it, if you’re curious), but trust me, it was legally specious and, in fact, an utterly bananas exercise in outright judicial activism and overreach.
Now comes the ruling on Texas Bill S.B.8, which fairly takes the cake. Anybody reading this will already understand just how deeply into the radical pro-life fever swamp this grotesque “heartbeat” anti-abortion law has waded, making the termination of all pregnancies unlawful after only six weeks from conception, with no exceptions even for rape and incest, while deputizing private citizens to carry out the enforcement function – any private citizens, from anywhere across the country – for all practical purposes putting a bounty on abortion providers and anybody who abets them in any way. It’s not just that the law is vague, draconian, and purposefully designed to produce burdensome and abusive litigation; the odious thing was designed to evade judicial intervention by exploiting the peculiar boxes into which legal minds always seem eager to lock themselves.
The sleight of hand is in the enforcement mechanism. Under S.B.8, ordinary people step in for the state to go after offenders. The Attorney General is actually prohibited from acting independently to uphold the law. This has the effect of stopping constitutional applications for relief prior to the law coming into effect, since within the legal scheme, any citizen wishing to be protected from an unconstitutional law must frame the action as a lawsuit, as if it was a claim for damages. The doctrine of sovereign immunity prevents any citizen from suing the state as such, so over a century ago the courts did what they do best, and, rather than reconceptualize the nature of constitutional cases, made a distinction without a difference, by declaring that sovereign immunity was not offended if the citizen, rather than suing the state, sued the state official tasked with enforcing it.
Ah, but here there is no state official responsible for enforcing the law, so hey presto, the citizen has nobody to sue.
There are any number of logical ways out of this blind alley if, just this once, lawyers and jurists could pull their heads out their own backsides for a moment and think clearly, like:
a) it could be decided that the doctrine of sovereign immunity is inapplicable to constitutional challenges of new laws. After all, the only modern public policy justification for the essentially totalitarian doctrine, a holdover from the days of monarchy and the Divine Right of Kings, is to prevent citizens from undermining the function of government by preventing any lawmaking, or bankrupting the state with tort claims, every time a law harms or threatens to harm private pecuniary interests, as of course many laws must, since all public policy involves trade-offs and the balancing of harms in the pursuit of the common good. In these sorts of constitutional challenges, no one is suing for monetary damages, much less trying to assail any public officials merely for doing their jobs, nor is there any general threat to the ability of government to fulfill its assigned role in civil society; the plaintiffs are asking only for protection against an unlawful curtailment of their own constitutional rights, which the state is trying to impose. Invoking sovereign immunity in these cases must logically be based on the premise that the sovereign is immune even from its own obligation not to break the supreme law of the Constitution to the detriment of citizens – an absurdity. Therefore, the State can be named as a party where the relief sought is purely declaratory or injunctive, and constitutional rights are at stake; or
b) it could be decided that the rule of law and the guarantee of due process requires that states not delegate their key enforcement obligations to a citizenry that will act on its own whims, capriciously, absent democratic accountability, and without any expertise or interest in weighing the merits and deciding when proceedings are appropriate, thus rendering the law invalid, and therefore empowering the applicant to seek general injunctive relief against private enforcement, without having to sue anybody in particular; or
c) it could be decided that such delegation, while not prima facie improper, is, when used with respect to laws that have the effect of abridging constitutional rights, merely an attempt to do indirectly what cannot be done directly, and therefore the Attorney General, or some other state official, remains the appropriate party to be named as a litigant,
…and so on. Rather than grant a stay of the Texas law pending a chance to argue about any of that, SCOTUS used its shadow docket procedure to refuse to get involved, allowing the law to stand for now, and, as before, telegraphing the likely final disposition when the monstrosity does finally reach their doorsteps for adjudication. Technically, they’re not deciding anything on the merits by letting the law go into effect. Practically, though, they are. Abortions are banned in Texas starting right now, even though, pending the actual overturning of Roe v. Wade, which is sure to come (perhaps as soon as the challenge of another “heartbeat law” coming out of Mississippi is heard sometime this Autumn), there is no doubt that the new law violates what are still constitutional rights. In that case, a stay is the only appropriate interim remedy.
In this case, very brief reasons were released, just a few lines, from which the three liberal justices and the Chief Justice dissented. Justice Sotomayor, calling the ruling “stunning”, said this:
[Bill S.B.8 is] a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas…Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.
Justice Kagan likewise hit the nail squarely on the head:
The majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decision-making—which every day becomes more unreasoned, inconsistent, and impossible to defend.
Imagine if, at the end of the day, this law stands, and the use of the public as a surrogate enforcer to take away constitutional rights is an approved method of undermining the Constitution. This case is so much bigger than abortion rights. It could be the thin edge of the wedge that begins the destruction of the entire Bill of Rights.
This robed gang of nakedly partisan GOP appointees needs to be brought to heel. They are out of control, and acting openly and unabashedly as a wing of the Republican Party, ratifying antisocial and once unlawful Republican Party policy prescriptions. Nothing less. Of course they are. It’s why they were put there. It’s what they’ll continue to do. There’s no choice, now, but to swallow hard and do something once considered drastic. The Court must be expanded immediately, and the Republican majority turned back into the minority it ought to be, given how many of them were appointed by a President who lost the popular vote. Further reforms should be enacted – on the table are term limits, special sub-committees of the Court with rotating Circuit Court membership, and other bright ideas.
Yes, the Republicans may one day take control again, and do the same, down the road. So be it. The fact is that the best way to prevent that, and stop them from seizing power permanently, is to neuter the current Court and put a stop to voter suppression, gerrymandering, and the domination of the political process by moneyed oligarchs, all designed to keep the GOP in power indefinitely, and all endorsed by the Republican Court. If this is allowed to go on much longer, it won’t just result in a loss of female reproductive rights, or the savage curtailment of civil rights of all manner, or even the utter destruction of all laws and regulations designed to protect the weak from the powerful. Americans will lose their democracy, because Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett say so.