On Top of Everything Else, the Conservative Justices' Reasoning in the Texas Abortion Case Is...

[Nevilledog]

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Poli Alert
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“...the court opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women.”

On Top of Everything Else, the Conservative Justices’ Reasoning in the Texas Abortion Case Is Legal...
They overturned 50 years of precedent without even grappling with the legal issues.
slate.com
6:52 AM · Sep 3, 2021

https://slate.com/news-and-politics/2021/09/conservative-justices-abortion-legal-mansplaining.html

If you woke up this morning to the news that in the middle of the night, in an unsigned order, five conservative justices of the U.S. Supreme Court ended 50 years of abortion rights in Texas without full briefing or oral argument, you might well be wondering why they didn’t just wait and do it on the regular docket, in a Mississippi case they will hear this fall. That case, Dobbs, would have achieved most of the same outcomes—Mississippi’s is a 15-week ban as compared with Texas’ six-week—but both were pre-viability and both upend the long-standing rule that pre-viability bans are unconstitutional. After sitting on the Mississippi case for months, the high court agreed to hear Dobbs last spring, despite the fact that there was no circuit split and no need to address the abortion issue at all. The difference was merely that Amy Coney Barrett had taken over from Ruth Bader Ginsburg. There was no meaningful way to understand the decision to take up Dobbs beyond the fact that with Brett Kavanaugh and Barrett now seated, the court finally had the votes to end Roe.

So if the court planned to do so anyhow, and as early as 2022, in a properly briefed and argued case with an actual trial record, what possible logic led five justices to do the sneaky, garbage version in a page and a half at midnight? They could have used Dobbs and some cynical trickery with the undue burden test to achieve the same result in an open, orderly fashion, but instead they opted to do it over their summer recess, on the shadow docket, without proper explanation or transparency.

The cynic in me stands by the claim that they never intended to do in the open what could be done through sloppy subterfuge; that blaming irascible Texas wackiness, throwing up their hands and sighing that a law that was designed to evade judicial scrutiny somehow should evade scrutiny, and then slinking off to bed in the hopes that nobody would care much was always the most appealing strategy. But a careful look at the shoddy, contemptuous jurisdictional reasoning of the five justices in the majority suggests something even darker. It’s not just that the majority of the Supreme Court functionally ended abortion rights for most women in Texas last night merely because they could. And it’s not just that they did so because—as is so often the case with impressionistic, frayed shadow docket reasoning—their personal feelings about the constitutional right to abortion are quite robust. It’s almost impossible to not go one further and declare that the court opted to end virtually all abortion rights in Texas, in the full knowledge that they were blessing an unconstitutional and brutal piece of lawless vigilantism, because it’s only about women.

Forgive the hyperbole, but how else could the five justices in the majority—in the fullness of knowledge that by Wednesday morning Texas women would be isolated, terrified, and medically and psychologically endangered as a result of their own inaction—hide behind odious mansplaining about the “complex and novel antecedent procedural questions” that force them to stand by as clinics are shuttered and frantic women beg for services? In 2016, the Supreme Court conceded that a woman is 14 times more likely to die by carrying a pregnancy to term than by obtaining an abortion. The Texas law has no exception for rape or incest. And at six weeks of pregnancy—two weeks past a last missed period—vast numbers of women are unaware that they are pregnant.

*snip*

[SWBTATTReg]

1. Doing it in the middle of the night is what really disgusts me. I thought our Supreme Court was

far better than this. Now, I don't think so, and I think lawless thugs have indeed taken over the rule of law, using the darkness of midnight to pull their evil deeds.

[CaliforniaPeggy]

2. An excellent and horrifying piece of writing! K&R

[sop]

3. The American Taliban strike again.

[maxsolomon]

4. McConnell won.

a 6-3 Court is a disaster that will last decades.

[wyn borkins]

5. Replace Them All

These five (things) should be REMOVED from the court and replaced with real humans.
.
.
.
And yes, I realize that will not happen...

[gratuitous]

6. Like the per curiam opinion in Bush v. Gore

It's almost like the majority faction of the Nine Wise Souls are kind of, I don't know, ashamed or something of their decision, none of them wanting to put their names on it. They accomplished what they set out to do so many years ago, but at the ultimate moment of triumph . . . Well, perhaps Hela said it best: Proud of what they did, ashamed of how they did it.

[Hekate]

7. Dahlia Lithwick just ripped 5 Supremes & their Senate enablers a new one...

I only wish they could feel the pain the way we do.

[snot]

8. Can S. Ct. Justices be impeached,

and what are the requirements?

[brush]

9. And Coney Barrett, the woman originalist, a walking, talking oxymoron...

if there was ever one, went right along with the anti-women, winger males, as she was programmed to do.

What a disgrace she is. I have no respect for her or the four other pathetics (that's a good word for them, as it suits them just fine).

[world wide wally]

10. What galls me most is that the stupidest, most incoherent President in our history got to appoint 3

fucking SC Judges in spite of losing the popular vote.
The stupid is strong in our country.

[sop]

11. Historians will inevitably document how "the stupidest, most incoherent President in our history"

was nothing more than a corporate media creation, put in power by appealing to the basest and lowest instincts of stupid voters.

[Duppers]

12. Truth! ☝