Posts tagged with "American Bar Association"

How SCOTUS quietly undercut Roe v. Wade

September 6, 2021

In an extraordinary use of the so-called shadow docket, the U.S. Supreme Court has refused to block a law effectively banning abortion, The New York Times reports.

According to the American Bar Association, the “shadow docket” is a mechanism that defies the court’s “normal procedural regularity.” Instead, it is a method by which the court can hand down decisions quickly—without hearing oral arguments, receiving amici curiae filings, or having to write out lengthy philosophical tracts explaining the jurisprudence underpinning their decision.

At 1 a.m. Eastern time on Wednesday, September 1,without a single word, the Supreme Court let the State of Texas effectively ban abortion—for the first time in nearly 50 years, the Times notes.

But it was not the first time the court had used the shadow docket so aggressively. It was not even the first time in the past week: Indeed, on Thursday, August 27, the court blocked an extension of the federal emergency ban on evictions—gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the eight million American households that are behind on rent – and which may now, without federal eviction protection, face homelessness.

As the night of September 1 became day, and became night again, abortion providers across Texas turned away patients seeking what was, according to the court’s own precedent, a constitutional right, still the justices said nothing. When they broke their silence 23 hours later, refusing to block a law that unambiguously violates Roe v. Wade, the five-justice majority took only 400 words to describe its reasoning.

Because the shadow docket involves so little deliberation and transparency, the court historically hasn’t used it to enable major policy changes or to reverse precedents, and the rulings themselves haven’t been treated as precedents. But that restraint is a norm, not a requirement, and the court has increasingly been breaking it: using the shadow docket more often, on more consequential matters, and with more precedential weight. Last year, it issued several orders on the shadow docket concerning coronavirus restrictions and went on to cite some of them in rulings on the regular docket.

“That’s really not typical, nor is it supposed to be typical,” said Melissa Murray, a professor of law at New York University and an expert on reproductive rights.

I think it’s a reasonable question, whatever one thinks of the answers the court is reaching in these cases, whether we actually think it’s healthy for so many major questions affecting so many people to be resolved in this highly compressed, circumscribed, truncated review process,” said Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on federal courts.

The court’s increasingly assertive use of the shadow docket has angered some of its members, like Justice Elena Kagan, who wrote in her dissent from the order on Texas’ law, “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.”

Chief Justice John G. Roberts Jr., the only conservative who dissented, criticized the process less forcefully, writing that the structure of the new abortion law was “not only unusual, but unprecedented,” and that while Texas’ legal arguments “may be correct,” the questions involved were too weighty to resolve in such a rushed way.

 Texas’ law, called S.B. 8, prohibits abortion once cardiac activity is detectable in the embryo — around six weeks’ gestation, before many people know they are pregnant. (Pregnancies are dated from the last menstrual period, so “six weeks” generally means four or less after fertilization, and two or less after a missed period.) Planned Parenthood v. Casey, the 1992 case that affirmed Roe, protects a right to abortion until the fetus can survive outside the uterus, around 23 weeks’ gestation.

What distinguishes the Texas law from bans that courts have blocked everywhere else is that, instead of making abortion a crime prosecutable by the government, it lets any citizen sue anyone whom he or she accuses of “aiding or abetting” an abortion after the cutoff point—phrasing that includes not only abortion providers but also anyone who, for instance, pays for a procedure or drives a patient to a clinic. Successful plaintiffs will get $10,000 and reimbursement of their legal fees. Defendants who prevail will not be reimbursed.

“It is quite striking and quite galling that the Supreme Court would allow a state to essentially destroy Roe under cover of night with no decision,” Leah Litman, a professor of law at the University of Michigan, said Wednesday afternoon, before the court had spoken. “I think it’s pretty cowardly, I think it’s an affront to the rule of law, and it is quite troubling about what it suggests about the enforcement of our constitutional rights going forward.”

If by outsourcing enforcement to citizens, a state can enact a law that would otherwise be blocked as unconstitutional, “there’s nothing that stops other states from enacting similar laws to undermine other constitutional rights,” Professor Litman said. “Religious liberty, Second Amendment protections, property rights, right to bodily autonomy — there’s just no limitation.”

Research contact: @nytimes

Flake urges one-week delay for FBI probe of allegations against Kavanaugh

October 1,  2018

On Friday, September 28, the Senate Judiciary Committee voted 11-10 along party lines to advance Judge Brett Kavanaugh’s SCOTUS nomination to the entire Senate for a vote. However, the floor vote may be delayed for as long as one week.

After hearings on September 27 that comprised credible accusations of sexual assault made by Dr. Christine Blasey-Ford—and strong denials from the  nominee—the committee now is considering a variety of demands to conduct a more thorough investigation of the allegations through the Federal Bureau of Investigation.

A member of the committee, Republican Senator Jeff Flake (Arizona) voted with his GOP colleagues, but then called for a delay so that the FBI could investigate the accusations against Kavanaugh.

In addition, the American Bar Association, Yale University, and three Republican governors —Larry Hogan of Maryland, Charlie Baker of Massachusetts, and John Kasich of Ohio—called for a probe into the charges.

In a letter sent to committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Dianne Feinstein (D-California) on the evening after the September 27 hearings,  Robert Carlson, the president of the American Bar Association called on the committee to halt the confirmation vote until “after an appropriate background check into the allegations made by Professor Ford and others is completed by the Federal Bureau of Investigation.

“Each appointment to our nation’s Highest Court (as with all others),” he said, “is simply too important to rush to a vote. Deciding to proceed without conducting additional investigation would not only have a lasting impact on the Senate’s reputation, but it will also negatively affect the great trust necessary for the American people to have in the Supreme Court. It must remain an institution that will reliably follow the law and not politics.

The call for a pause is significant, The New York Times said,  not just because of the bar association’s clout in the legal community, but because an A.B.A. committee had said unanimously a month ago that Judge Kavanaugh was “well-qualified” for the Supreme Court, its highest possible designation. Judge Kavanaugh and his supporters had noted that distinction in arguing for his nomination to be approved by the Senate.

Meanwhile, 48 members of the faculty of Kavanaugh’s alma mater, Yale Law School, sent a letter delineating concerns about “a rush to judgment.” They noted “Where, as here, a sexual assault has been alleged against an individual nominated for a lifetime appointment in a position of public trust, a partisan hearing alone cannot be the forum to determine the truth of the matter. Allegations of sexual assault require a neutral factfinder and an investigation that can ascertain facts fairly.  Those at the FBI or others tasked with such an investigation must have adequate time to investigate facts. Fair process requires evidence from all parties with direct knowledge and consultation of experts when evaluating such evidence. In subsequent hearings, all of those who testify, and particularly women testifying about sexual assault, must be treated with respect.

In addition, three Republican governors—John Kasich of Ohio, Charlie Baker of Massachusetts and Phil Scott of Vermont—called for the GOP-controlled Senate to slow down Kavanaugh’s nomination to the Supreme Court, and a fourth called the accusations against him “disturbing.”

According to a report by the Huffington Post, Baker and Kasich both weighed in on Twitter. Baker described the allegations as “sickening” and said there should be no Senate vote until an independent investigation is complete. Kasich, who is in his final year as governor and is widely seen as a potential long-shot primary challenger to President Donald Trump in 2020, went further in his own statement, saying he would not support Kavanaugh’s confirmation “in the absence of a complete and thorough investigation.”

Scott made similar remarks to the Burlington Free Press. “This is a lifetime appointment,” Scott said. “And I’m not taking a position on Judge Kavanaugh himself, but we owe it to Americans to make sure that they get it right. Because this doesn’t happen every day. And it’s their obligation to do so. So take your time. Investigate.”

In addition, the Huffington Post reported, Maryland Governor Larry Hogan told The Baltimore Sun on September 26 that the accusations were “disturbing” and gave him “great pause.”

He noted,“There are credible charges and big concerns. They need to be heard,” he said after an event in Montgomery County. “They ought to take whatever time it takes to make sure these accusers are heard and he has a chance to respond to them.”

Senator Lindsey Graham (R-South Carolina)—who, as a committee member, had adamantly defended the nominee during the hearings on September 27—told CNN after the committee vote that he did not think the delay was necessary, but “this is democracy.” He added, “If Jeff feels better about it, I’ll feel better about it,”

Currently, according to Fox News, 56% of U.S. voters would delay the full Senate floor confirmation process on Kavanaugh to allow for more investigation of the allegations against him; and 31% would not delay.

Rsearch contact: @foxnewspoll