SCOTUS - The Good, The Bad, and The Ugly

[LFC]

Josh Marshall penned Zeno's Abortion Ban. It really shows how cowardly and corrupt Fascist SCOTUS is. In full:

One notable thing about a nakedly political Supreme Court majority is that a handful of legal academics, wholly cocooned from everyday life, aren’t terribly adept at politics. You can see this in the reaction to the Court’s effort to moonwalk Roe v Wade out of existence earlier this week. They seem to have thought they could throw up their hands and pretend they weren’t really doing anything or didn’t have any choice in the matter. Even John Roberts showed them the path toward overruling Roe through the normal review process some time next year. The majority both couldn’t hide its impatience to strike down Roe but also wanted to do so in the middle of the night – by not acting rather than acting – and that somehow no one would notice.

People noticed.

Various articles I read this morning had references to the idea that the Court was already scheduled to ‘consider further restrictions on abortion’ next year in the Mississippi case. That may sorta be true inasmuch as the law bans abortions after 15 weeks. But these press reports seem not to accept that these ‘restrictions’ effectively amount to bans or that one expects the Court will simply overrule Roe altogether. The news and legal commentary doesn’t seem to have caught up to the public reaction and backlash.

It has long been obvious that the vast majority of Republican elected officials prefer the Zeno’s paradox approach to banning abortion: keep giving abortion rights opponents new wins with more and more restrictions on abortion while never quite getting to a formal or total ban which risks shifting the political calculus that has worked for them for so long. I don’t think that applies to the Court’s far-right majority. They’ve got their lifetime appointments. They’re ideologues. And yet the Texas non-decision shows they’d like to do it somehow out of public view.

But now they’ve essentially managed not only to overrule Roe but do so with a law that lets that guy you knew in High School who’s always sharing right wing memes on Facebook sue your sister who drove you to the clinic for a $10,000 cash prize. In a way the antis and the Court have done abortion rights advocates a favor by creating a reality in Texas that exposes the hideousness of the Roe opponents’ aspirations: both shackling and predatory.

[LFC]

Adam Serwer's take on the anti-judicial right-wing court. Welcome to fascism. You gotta' control the courts. Here's how they've used the shadow docket to quietly push their personal agendas rather than uphold the law.

Over the past few years, the cases on the shadow docket have risen in significance, with the justices quietly making major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions. Trump-administration attorneys found the Court’s conservative majority delighted to allow many of their most controversial policies to go forward. Under President Joe Biden, by contrast, the conservative justices have acted rapidly to block administration decisions, or to force Trump-era policies to remain in place.

“The term shadow is meant to evoke the understanding that what the Court is doing is not the way that decision making on an ordinary merits docket would happen,” says Melissa Murray, a law professor at NYU who clerked for Sotomayor while she was a federal judge. “I think it’s clear that it has become a shadowy way to effect substantive decisions in cases where the Court, in the light of day, would be more reluctant to move aggressively.”

The shadow docket has been a tremendously successful venue for the right. Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docket, counts at least 41 requests for “emergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined. And he counts only four occasions during the Trump administration on which the Court denied “the government’s request outright.” That deference has not continued into the Biden administration.

“During the Trump administration, it was on the shadow docket that basically all of Trump’s controversial immigration policies affecting millions of people were allowed to go into effect, including the travel ban,” Vladeck told me. “During the Biden administration … perhaps the biggest shadow-docket ruling so far was the ruling last week that froze and effectively killed the CDC’s revised eviction moratorium.”

“What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck said. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.” Having a conservative-dominated tribunal determine such questions, however, is an ideal arrangement for a party that has not won a majority of the votes in a presidential election since Tobey Maguire was Spider-Man, and that sees the popular majorities that vote against it as composed of illegitimate semi-citizens who have no right to govern.

The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny. And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.

And then this. What a perfect description.

Instead, the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.

[LFC]

I just read this piece at TAC which, of course, thinks the Texas vigilante law is awesome. As is usual at TAC the real value of the piece is found in the comments. I hadn't even dreamed of this case. Imagine the couple living through the heartbreak of a miscarriage only to be sued because she wasn't able to carry to term.

Richard • 2 days ago

So now, if you live in Texas and your wife has a miscarriage, you and her whole medical team can look forward to being dragged into court by some self-appointed uterus police to prove that it was a miscarriage.

At least after you go through the ordeal and clear your name, the well-funded zealots who sued you based on a hunch will have to pay your legal bills because this is America and we don’t encourage abuses of the legal system, right?

Nope. The law specifically says you can’t. The would-be bounty hunters are shielded from normal countersuits. They’re protected from any accountability while their victims get nothing but bitterness.

The law also encourages the self-appointed uterus police to go after as many people as possible: there’s no penalty for accusing and losing, only cash rewards for winning. Any sensible bounty hunter would cast the widest possible net, knowing they can’t (legally) be held to account for recklessly false accusations.

There’s also no exception for rape or incest, which rightly horrifies anybody who thinks of a 12-year old carrying her father’s rape fetus shouldn’t be further traumatized by the state.

The anti-choice zealots don’t care about any of this. Justice, fairness, accountability, respect for the law, mercy, any of it. They’re zealots, after all. Sort of definitional. If they have to undermine our entire legal system to feel virtuous, they’re going to do it and they’re going to sleep well and night, never doubting their own righteousness. If they have to burn down the whole country, they’ll do that. They are living mockeries of good citizenship, and I don’t know how long a free nation can survive them

[LFC]

Here comes wholesale harassment!

An anti-abortion group is urging people to anonymously report those who have violated a new Texas law banning most abortions.

The law, signed by Republican Gov. Greg Abbott in May, took effect on Wednesday and prohibits abortions once a fetal heartbeat can be detected, usually around six weeks into a pregnancy and before most women even know they are pregnant.

But unusually, the law does not impose criminal penalties for carrying out abortions after a fatal heartbeat is detected. Instead, it empowers private citizens to enforce it by suing doctors or anyone who assists a woman in getting an abortion past the six-week mark.

In a bid to enforce the law, Texas Right to Life launched a new website in August—prolifewhistleblower.com—seeking anonymous tips on how the law has been violated. It also asks tipsters to name the doctor or clinic that may have violated the law.

[goldenvalley]

Sept 3, 2021 19:07:59 GMT LFC said:

Here comes wholesale harassment!

An anti-abortion group is urging people to anonymously report those who have violated a new Texas law banning most abortions.

The law, signed by Republican Gov. Greg Abbott in May, took effect on Wednesday and prohibits abortions once a fetal heartbeat can be detected, usually around six weeks into a pregnancy and before most women even know they are pregnant.

But unusually, the law does not impose criminal penalties for carrying out abortions after a fatal heartbeat is detected. Instead, it empowers private citizens to enforce it by suing doctors or anyone who assists a woman in getting an abortion past the six-week mark.

In a bid to enforce the law, Texas Right to Life launched a new website in August—prolifewhistleblower.com—seeking anonymous tips on how the law has been violated. It also asks tipsters to name the doctor or clinic that may have violated the law.

I've been seeing social media posts suggesting that everyone flood the site with "tips" to make it crash.

[jackd]

What would be the point in anonymous reports? The law requires a private citizen to file a lawsuit to get enforcement.

[goldenvalley]

Sept 3, 2021 19:54:40 GMT jackd said:

What would be the point in anonymous reports? The law requires a private citizen to file a lawsuit to get enforcement.

Just to crash the site.  

[jackd]

The report spoke of an anti-abrtion group urging the anonymous reporting. I must be missing something.

[goldenvalley]

Sept 3, 2021 20:32:30 GMT jackd said:

The report spoke of an anti-abrtion group urging the anonymous reporting. I must be missing something.

Sorry...crossed signals.  I was remarking that I saw on social media remarks about people flooding the tip site in order to crash it.   The report on anti-abortion types made me think of it.  

[indy]

I'm a bit confused. It appears there is no punishment for suing, only a reward. Why not just file so many suits as to clog the courts to no end? Sue doctors, hospitals, gop politicians. I assume there is something to prevent this, but I don't know what it is.

[goldenvalley]

Sept 3, 2021 21:05:00 GMT indy said:

I'm a bit confused. It appears there is no punishment for suing, only a reward. Why not just file so many suits as to clog the courts to no end? Sue doctors, hospitals, gop politicians. I assume there is something to prevent this, but I don't know what it is.

Those opposed to the law could try to clog the courts this way.  The problem is the defendants would have to hire a lawyer to file a response to the suit.  That costs them $$ which is the part of the reason the right to lifers dreamed up these scheme.  

[LFC]

Sept 3, 2021 19:54:40 GMT jackd said:

What would be the point in anonymous reports? The law requires a private citizen to file a lawsuit to get enforcement.

So the faithful can follow up and sue when the tipster would rather not.

[pnwguy]

Sept 3, 2021 18:58:47 GMT LFC said:

I just read this piece at TAC which, of course, thinks the Texas vigilante law is awesome. As is usual at TAC the real value of the piece is found in the comments. I hadn't even dreamed of this case. Imagine the couple living through the heartbreak of a miscarriage only to be sued because she wasn't able to carry to term.

Richard • 2 days ago

So now, if you live in Texas and your wife has a miscarriage, you and her whole medical team can look forward to being dragged into court by some self-appointed uterus police to prove that it was a miscarriage.

At least after you go through the ordeal and clear your name, the well-funded zealots who sued you based on a hunch will have to pay your legal bills because this is America and we don’t encourage abuses of the legal system, right?

Nope. The law specifically says you can’t. The would-be bounty hunters are shielded from normal countersuits. They’re protected from any accountability while their victims get nothing but bitterness.

The law also encourages the self-appointed uterus police to go after as many people as possible: there’s no penalty for accusing and losing, only cash rewards for winning. Any sensible bounty hunter would cast the widest possible net, knowing they can’t (legally) be held to account for recklessly false accusations.

There’s also no exception for rape or incest, which rightly horrifies anybody who thinks of a 12-year old carrying her father’s rape fetus shouldn’t be further traumatized by the state.

The anti-choice zealots don’t care about any of this. Justice, fairness, accountability, respect for the law, mercy, any of it. They’re zealots, after all. Sort of definitional. If they have to undermine our entire legal system to feel virtuous, they’re going to do it and they’re going to sleep well and night, never doubting their own righteousness. If they have to burn down the whole country, they’ll do that. They are living mockeries of good citizenship, and I don’t know how long a free nation can survive them

Why target miscarriages?  ANY woman capable of pregnancy can be accused.  "How do we know she wasn't pregnant and aborted it?"  How can most women prove they were NOT pregnant 6 weeks ago?  All you need is court filing fees to accuse random women you don't like (perhaps those "dark" ones) and have them investigated for who their OB/GYN is.  Doctors will have to respond to lawsuits.  It costs almost zero to file a suit, with the possible $10K payoff.  

Gilead, here we come!

[Bact PhD]

Sept 3, 2021 22:04:05 GMT pnwguy said:

Sept 3, 2021 18:58:47 GMT LFC said:

I just read this piece at TAC which, of course, thinks the Texas vigilante law is awesome. As is usual at TAC the real value of the piece is found in the comments. I hadn't even dreamed of this case. Imagine the couple living through the heartbreak of a miscarriage only to be sued because she wasn't able to carry to term.

Why target miscarriages?  ANY woman capable of pregnancy can be accused.  "How do we know she wasn't pregnant and aborted it?"  How can most women prove they were NOT pregnant 6 weeks ago?  All you need is court filing fees to accuse random women you don't like (perhaps those "dark" ones) and have them investigated for who their OB/GYN is.  Doctors will have to respond to lawsuits.  It costs almost zero to file a suit, with the possible $10K payoff.  

Gilead, here we come!

Not even that, anyone can be accused of "aiding and abetting" -- niceties such as evidence, proof, witnesses aren't even needed to get the foot in the door. Regardless of how ludicrous the accusation is, the accused is going to have to pony up to defend a nuisance lawsuit ...talk about a convenient means to harass people you don't like...

[pnwguy]

Sept 3, 2021 22:27:49 GMT Bact PhD said:

Sept 3, 2021 22:04:05 GMT pnwguy said:

Why target miscarriages?  ANY woman capable of pregnancy can be accused.  "How do we know she wasn't pregnant and aborted it?"  How can most women prove they were NOT pregnant 6 weeks ago?  All you need is court filing fees to accuse random women you don't like (perhaps those "dark" ones) and have them investigated for who their OB/GYN is.  Doctors will have to respond to lawsuits.  It costs almost zero to file a suit, with the possible $10K payoff.  

Gilead, here we come!

Not even that, anyone can be accused of "aiding and abetting" -- niceties such as evidence, proof, witnesses aren't even needed to get the foot in the door. Regardless of how ludicrous the accusation is, the accused is going to have to pony up to defend a nuisance lawsuit ...talk about a convenient means to harass people you don't like...

Certainly DeSatanist won't allow Abbott to out-MAGA him for long.  Look for Florida's version ASAP.

[pnwguy]

Sept 3, 2021 22:33:11 GMT pnwguy said:

Sept 3, 2021 22:27:49 GMT Bact PhD said:

Not even that, anyone can be accused of "aiding and abetting" -- niceties such as evidence, proof, witnesses aren't even needed to get the foot in the door. Regardless of how ludicrous the accusation is, the accused is going to have to pony up to defend a nuisance lawsuit ...talk about a convenient means to harass people you don't like...

Certainly DeSatanist won't allow Abbott to out-MAGA him for long.  Look for Florida's version ASAP.

Come to think of it, any Tex-ass anti-vaxxer could start suing medical care workers who are giving out Covid vaccines, claiming they are chemical abortions.  It won't matter that it's absolute bullsh*t, because the consequence-free litigation can bankrupt the staff by naming them in lawsuits.

[goldenvalley]

The extent to which anti-abortionists go to avoid prosecuting women for getting an abortion is fascinating to me.  Notice that the Texas law doesn't allow for suing the person for getting the abortion; only for doctors, clinics, anyone who aided and abetted it.  If abortion is murder why this avoidance of punishing the person who consents to it?

[AnBr]

Sept 3, 2021 21:10:04 GMT goldenvalley said:

The problem is the defendants would have to hire a lawyer to file a response to the suit.  That costs them $$ which is the part of the reason the right to lifers dreamed up these scheme.  

So file only against anti-choice people. Doesn't matter if there is no basis or not if there are no repercussions for filing frivolous suits.

[jackd]

There may be repercussions for filing frivolous suits. Those are separate statutes and court rules.

[LFC]

Josh Marshall advocates putting this to a vote in Congress to get everybody on record. Sounds reasonable.

Since they are generally indifferent to the actual work and function of government, Republican elected officials are generally much more adept at holding test votes to put people on record for views out of step with public opinion. That’s a big benefit of holding the majority, even the slenderest of them: you get to schedule the votes. The new Texas abortion law is a case in point. De facto bans on abortion are not popular. Abortion vigilante bills are really, really unpopular. There are any number of ways you could craft votes which force everyone to go on record supporting or opposing them. You could craft actual laws or just sense of Congress resolutions. Whatever. It hardly matters. Good government scolds won’t like it. But who cares. Lets get to this.

[goldenvalley]

I was amused when I saw this paragraph in a Wall Street Journal opinion piece on the Texas abolition of legal abortion law:

Sometimes we wonder if Texas Attorney General Ken Paxton is a progressive plant. His ill-conceived legal attack against ObamaCare backfired on Republicans in last year’s election and lost at the Supreme Court. Now he and his Texas mates are leading with their chins on abortion. How about thinking first?

Basically the writer says the law is probably unConstitutional, but that the procedural posture of the case makes the Court's denial of a stay of enforcement okay. 

[pnwguy]

Sept 4, 2021 15:33:18 GMT goldenvalley said:

I was amused when I saw this paragraph in a Wall Street Journal opinion piece on the Texas abolition of legal abortion law:

Sometimes we wonder if Texas Attorney General Ken Paxton is a progressive plant. His ill-conceived legal attack against ObamaCare backfired on Republicans in last year’s election and lost at the Supreme Court. Now he and his Texas mates are leading with their chins on abortion. How about thinking first?

Basically the writer says the law is probably unConstitutional, but that the procedural posture of the case makes the Court's denial of a stay of enforcement okay. 

Thinking is for Liberals. True Belief in MAGAstan requires reflexive action, no matter how stupid. A fly lands on your boot? Take your 12 gauge and shoot it. That will teach that vermin a thing or two!

[Traveler]

I cannot believe how this will engender more POG support from independents and women. Still seems there are too many maggots left in TX to make any difference there, but think of all those states the dump barely won. NC and FL stand out there. So lets root for deminimus to ram this down FL legislature.

[LFC]

Sept 4, 2021 16:54:24 GMT Traveler said:

I cannot believe how this will engender more POG support from independents and women. Still seems there are too many maggots left in TX to make any difference there, but think of all those states the dump barely won. NC and FL stand out there. So lets root for deminimus to ram this down FL legislature.

Their strategy now is to turn out a shrinking angry base, suppress the ability for Democrats to vote, and when all else fails make up false accusations of fraud and try to outright steal elections. It's a strategy that shows a visceral loathing of American democracy but it's what they've got. It's what they are. Welcome to fascist thinking.

[goldenvalley]

Sept 4, 2021 16:54:24 GMT Traveler said:

I cannot believe how this will engender more POG support from independents and women. Still seems there are too many maggots left in TX to make any difference there, but think of all those states the dump barely won. NC and FL stand out there. So lets root for deminimus to ram this down FL legislature.

If the districts are gerrymandered well all those inclined to vote out POG will be gathered into a few districts (packed) and the rest will be put into oddly shaped districts (cracked) in which they are never the majority.  Add in what LFC describes and voila! POG wins.