I dashed this off in about 15 minutes after today’s updates in Dobbs v. Jackson and Whole Woman’s Health v. Jackson (different Jacksons, mind!). Didn’t really check for typos, certainly didn’t bother with many links. That might be a theme of my Dobbs coverage this year.
First, in Whole Woman’s Health v. Jackson (the main Texas abortion case), the Supreme Court granted cert before judgment, and on a timeline of just 10 days before oral arguments (!!!). That’s seems to be the fastest since Bush v. Gore, over twenty years ago, and that case was almost constitutionally mandated to move that fast because of the impending electoral college vote. They apparently want to hear this case so fast because they view it as just that big of an emergency situation.
The Supremes will be considering only the procedural question in WWH (basically, “Can a state structure a law to evade pre-enforcement judicial review?”), and will not actually consider to what extent the Constitution protects the right to abort a child. The law will remain in force (under a 5th Circuit order the Supremes declined to overturn) while they consider this… but wowza, they will not be considering this for long!
Given the judgment, the timeline, and the perhaps-dire consequences for constitutional rights of all sorts across the country if they decide otherwise, I suspect that the Supremes will vote that the Texas law is subject to immediate judicial review, and that will lead to its swift suspension — because abortion is still considered a constitutional right in the courts.
Furthermore, I suspect that they want this done before they hear Dobbs in early December. Dobbs is the case where they will actually decide whether to uphold or overturn the right to abort a child, based on a Mississippi law that bans abortions after 15 weeks — a popular law that is nevertheless inconsistent with Roe v Wade and its descendants like the Casey decision. (Notably, Roe v. Wade itself is also quite popular. The best explanation for this contradiction in polls seems to be that most Americans have no clue what Roe or Casey actually said.)
Honestly, I expected something like this to happen fully a month ago, but the 5th Circuit’s (frankly, it seems to me) obstreperousness in this case (obstreperousness in the defense of innocent human life is still obstreperousness) has lengthened the timeline.
In part because the Supremes refused to touch the abortion question in the Texas case, I think it likely that they will ultimately uphold the Mississippi law in Dobbs, overturning Roe/Casey in the process. But that is still many months away, and very much in doubt. For next couple weeks, the simple procedural question is, does the very weird structure of Texas’s law successfully shield it from the courts’ injunctions?
In other news, Mitch McConnell gave a speech highlighting how much he loves Clarence Thomas’s abortion decisions, because they are clear, concise, and unquestionably correct pieces of judicial reasoning. (He’s right.) That part of his speech seems to me not to have been intended for his audience at the time, nor for the general public, nor even for Justice Thomas (who was present). It seems intended for the Court’s moderates (Roberts, Kavanaugh, perhaps Barrett).
There’s a widespread fear among Republicans that Roberts & Kavanaugh, who know full well that Roe/Casey are made-up nonsense (heck, so do Kagan and Breyer) will decide to uphold Roe/Casey anyway, sheerly out of fear of the backlash against the Court. McConnell is one of the best political tacticians out there; he understands where the wind is blowing better than anyone alive, and he knows how to maximize the odds of achieving his political objectives. This McConnell speech seems (to me) like a message: the way to minimize the overall backlash against the Court is to write like Justice Thomas and overturn Roe/Casey — take the left-wing backlash on the nose instead of trying to split the baby and get both right-wing and left-wing backlash at once.
Given that pro-life voters are traditionally more active and more motivated and more focused than pro-choice voters, that’s fairly plausible on its face, and McConnell seems to have licked his finger, stuck it in the air, and decided it’s still true.
Of course, no good judge would decide a case on which important rights and human lives hang on anything so crass and irrelevant as possible political backlash. The Court’s job is to follow the law, and let Congress worry about the politics. But John Roberts is not a good Supreme Court justice (alas how far he has fallen), and nobody’s sure about Kavanaugh, so it makes sense to speak to Roberts in the childish language he understands.
As always, I welcome your comments below (if the fickle Disqus box decides to show up today).