Posts tagged with "U.S. Supreme Court"

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

‘Dark money’ funds TV ads to defeat Dems

July 16, 2018

So-called “dark money” has funded nearly 44% of TV spots about Congressional candidates during the first six months of this year, according to an analysis of Kantar Media data by USA Today, released on July 13. And more than half of those ads (25%) have not been positive.

In all, nearly 386,000 television spots focused on House and Senate races aired between January 1 and July 8, ranging from ads by candidates to those funded by outside groups. That total surpasses the 355,464 broadcast TV spots that ran at the same point in the last midterm elections for Congress in 2014 and underscores the battle raging for control of Congress.

Leading the way, the news outlet said, were organizations “affiliated with” billionaire industrialist Charles Koch, whose conservative donor network “plows hundreds of millions of dollars into politics” during each election cycle.

Indeed, two groups tied to Koch—Americans for Prosperity and Concerned Veterans for America—accounted for more than 25% of the advertising from groups that don’t disclose their donors. Both broadcast negative ads against five Democratic senators from red and purple states who are up for reelection—among them, Senators Joe Donnelly of Indiana, Claire McCaskill of Missouri, Jon Tester of Montana, Heidi Heitkamp of North Dakota, and Tammy Baldwin of Wisconsin.

Not only that, but they are only just kicking off their efforts, both to oust candidates who do not support their political agenda—and to advocate for those who are prepared to hold the conservative line.

Americans for Prosperity has announced that it will spend at least $1 million on paid advertising and voter outreach to advance the nomination of Brett Kavanaugh, who is President Donald Trump’s pick for the seat on the Supreme Court being vacated by Associate Justice Anthony Kennedy..

The other groups in the top five are One Nation, an issue advocacy group linked to Senate GOP leadership; Vote Vets Action Fund, a Democratic group that aims to elect veterans to office; and the U.S. Chamber of Commerce.

Democrats need to flip 23 seats in order to regain the House majority. But the party has a tougher challenge in the Senate. They’re largely playing defense and protecting ten seats in states Trump won, despite Republicans’ slim 51-49 seat majority

Research contact: fschoute@usatoday.com