The Supreme Court's Assault on The Rule Of Law
The Court's decision not to block an odious Texas abortion law is a disaster for women. It might be an even worse outcome for American democracy.
I'm Michael A. Cohen, and this is Truth and Consequences: A no-holds-barred look at the absurdities, hypocrisies, and surreality of American politics. If someone sent you this email - or you are a free subscriber - and you'd like to subscribe: you can sign up here.
This post is yet more evidence that I fundamentally stink at taking and enjoying vacation. But with a week like this — departure from Afghanistan, catastrophic flooding in the Northeast after a catastrophic hurricane on the Gulf Coast, and the re-insertion of abortion into the nation’s already polarized politics — it’s hard to sit this one out.
A Moral and Legal Abomination
On Wednesday night, a bit before midnight, the US Supreme Court, by a 5-4 vote, for all intents and purposes, overturned Roe v. Wade and made abortion functionally illegal in Texas, the nation's second-largest state.
The Texas abortion law that the High Court refused to block from going into effect is a constitutional and moral horror show. The law makes abortion illegal after six weeks—but not six weeks from conception but rather from a woman's last period. That could be two weeks after becoming pregnant when many women don't know they are with child. That's bad enough, but since such laws are illegal under Roe v. Wade, Texas Republicans devised a novel and lawless enforcement approach.
The bill allows private citizens to sue individuals they believe are getting abortions or assisting in the process (giving someone a ride to an abortion clinic would, in effect, incur potential civil liability). No evidence must be proffered. Instead, the mere accusation is enough to force defendants to show up in court and face a $10,000 fine if found "guilty." Those bringing a frivolous case would be immune from sanction like attorney’s fees. In effect, Texas is empowering individual citizens to act as private vigilantes against those seeking a constitutionally protected medical procedure. It's hard to imagine any abortion clinic in the state would want to put itself into the legal trap set by the Texas State Legislature.
To be sure, the High Court has not ruled on the constitutionality of the law. Down the road, the Justices may scrap it. But until a case reaches the Court – which could take months -- it will likely be impossible for a woman to get an abortion in Texas. This means that there are women who will be forced, against their will, to carry a baby to term. That is one bell that cannot be unrung.
I expect the rest of red-state America will soon follow the Lone Star State's lead and pass similar laws, and, of course, there's no guarantee that the High Court will throw out this abomination of a law. The more likely scenario is they will keep it in place but add even more onerous restrictions for women who seek an abortion. Or perhaps they will use a Mississippi law with a 15-week abortion ban, which they will be hearing arguments on this Fall, to do it. Either way, the Court's attitude toward abortion is clear.
This turn of events is a disaster for women in America. It's a disaster for reproductive and women's health. But beyond that obvious impact, it's a disaster for democracy and the rule of law.
Nice Democracy You Got There, Shame If Something Happened To It
What is perhaps most extraordinary about the Court's decision is that it was revealed at midnight on a Wednesday evening. No oral arguments were held. The decision was issued in an unsigned opinion. It was slipped it out in the dead of night, using the Court's so-called "shadow docket" to upend nearly 50 years of settled law on abortion rights. The move is both insidious and cowardly. One would hope that those five justices who upheld the Texas law (for now) would at least have the courage, and adherence to public transparency, to justify heir decision. Instead, they relied on a technical argument — that the Texas law creates "complex and novel antecedent procedural questions" — thus making it impossible for them to decide on the law's constitutionality. This is, of course, a dodge. Nothing was stopping the Court from staying the law until it had a chance a wind its way through the judicial system. The country had to instead rely on the Court's liberal members, which included Chief Justice John Roberts, to explain why the majority's decision is so dangerous.
It's bad enough that the current iteration of the Court lacks basic legitimacy. Neil Gorsuch is a justice because Mitch McConnell and Senate Republicans prevented Barack Obama from naming a replacement to the Court when Antonin Scalia died. Amy Coney Barrett sits on the Court because Republicans rammed her nomination through last Fall after Ruth Bader Ginsburg died – in direct refutation of their rationale for blocking Obama's pick in 2016. And Brett Kavanaugh made it to the highest court on the land after Republicans short-circuited an investigation into charges of sexual misconduct against him. By design, the Supreme Court is supposed to be an institution that is unsullied by partisan politics. Instead, it's become perhaps the most corrupted and politicized democratic institution in America.
Indeed, this is just the latest example of the Court using the shadow docket to make major legal decisions. In just the paw few months, the Court has blocked the Biden administration's effort to extend a federal eviction moratorium and stopped California from preventing religious activities as a public health measure to stop the spread of COVID-19. As I wrote about in early 2020, during the Trump presidency, the Court repeatedly took the unprecedented step of intervening in the federal appeals process and granting the Trump administration legal relief when lower courts ruled against it. In those cases, the Court usually granted emergency stays while providing no explanation for its decision -- just like it's done with the Texas case.
Indeed, this week's abortion decision is simply more of the same lawless behavior from the conservative members of the Court. These are the actions of a majority that feels no allegiance to judicial precedent, basic democratic norms, and certainly not the rule of law. A judicial body that would allow a state legislature to empower individual citizens to harass and intimidate women seeking a constitutionally protected medical procedure has clearly decided that it's simply not interested in a fair and just application of the law. Instead, it's a Court that is operating out of bias – i.e., personal opposition to abortion or, in other cases, acted as simple partisans, ruling in favor of the party to which they are members. It’s impossible to look at the actions of the Court’s majority and conclude that they are applying the law without prejudice, partisanship, or favor.
At this point, Democrats blowing up the filibuster and adding more justices to the Court would not be the actions of a partisan political party, but rather a last-ditch effort to preserve some modicum of fairness and allegiance to the rule of law in America.
I swan, a prima facie case for impeachment.
The hideous power of the shadow docket. If ever there was a case for fifteen Justices, this is it. None is supposed to represent a balance. I think the worst thing is that one of the justices and the man who appointed him are rapists themselves.