The headline item from the Supreme Court yesterday was its last minute decision to issue a stay in the Louisiana case that would have basically eviscerated Roe v. Wade and a woman’s right to choose. The decision was 5–4, with the swing vote being provided by Chief Justice Roberts, which gives an idea of just how radical this court is. The case was virtually identical to a Texas law that required admitting privileges for a nearby hospital for all abortion doctors that was struck down by the Court in a 5–3 decision in 2016 while Anthony Kennedy was still serving. With two new justices in place, Louisiana and the dreaded Fifth Circuit decided to see just how far the Court would go.
They got their answer. While some may put hope in the fact that Roberts voted along with the liberal bloc to issue the stay, the reality is more likely that he is protecting the power of the Supreme Court. Eviscerating Roe v Wade simply by letting a circuit appeals court overturn precedent without a full hearing on a case of this magnitude would invite chaos and be an abrogation of the power and responsibility of the Court. And we all know that Roberts really cares about his legacy.
Perhaps a greater hope lies in the dissent from Kavanaugh who, in the only written dissent, seemed to want to let the 45 day regulatory transition period of the law play out so that it could be determined just how many abortion providers would not be able to obtain hospital privileges before he would consider issuing a stay. Currently, Louisiana only has three abortion providers and there is a concern that that number could be reduced to one under the new law.
Yesterday’s ruling does not end the case and it is quite possible that the Court could hear the full case next term. Regardless, the lower courts are full of similar cases that are designed to test this newly constructed Court and find out how far it is willing to go to infringe on a woman’s right to choose, with ultimate goal being the end of Roe v Wade either by whittling it down to nothing or overturning it outright.
While Roberts may have temporarily delayed the seemingly inevitable erosion of a women’s right to choose, he did side with the other conservative justices in an outrageous decision that continues the Court’s implementation of Christianity as the state religion with special rights. The Court under Roberts has been especially aggressive in expanding what it calls “religious freedom” but what amounts to religious exemptions from constitutional responsibilities. The Hobby Lobby decision allowed a religious exemption to the requirements of the Affordable Care Act. In the Masterpiece Cakeshop, decision, it narrowly struck down Colorado’s anti-discrimination law protecting the LGBTQ community on the grounds that it exhibited anti-Christian bias. At the same time, the Court specifically ignored the racist rantings of the President when it finally upheld the Muslim ban. With Roberts leading, the Court has already made its pro-Christian, anti-Muslim agenda quite clear.
Yesterday’s ruling in the case of Dunn v Ray just put that bias into stark relief. The case was as straightforward as it gets. A Muslim inmate, had asked for a stay of his execution because the state of Alabama would not provide an imam to be present and the Eleventh Circuit granted that stay. The conservative bloc of the Court, led by Roberts, overruled that stay in a 5–4 decision.
Alabama regularly provides a Christian minister to be present at its executions and the Eleventh Circuit granted the stay on the grounds that it appeared the state was violating the Establishment Clause that one religion can not be preferred over another. Alabama’s policy clearly does that. As Kagan’s unusual dissent noted, under the state’s policy “a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality”.
The conservative bloc based their denial of the stay on the fact that the inmate had waited to long to file his appeal since his execution was originally set for February 7th all way back on November 6th. That seems like a pretty flimsy pretext for their decision because, as Kagan also noted, the inmate was not notified of the state’s refusal to provide an imam until January 23rd, and then followed the prison’s administrative procedures before filing his appeal on January 28th. That hardly seems like an excessive delay on the part of the inmate.
As Neal Katyal wrote last night, “100 years from now, law students will read about this decision. It may be read alongside Dred Scott, Plessy v. Ferguson, Korematsu, and the Chinese Exclusion Act cases”, joining the pantheon of the worst and most racist Supreme Court decisions in history.
But the case gets worse when you consider another aspect of this ruling. The Eleventh Circuit had already issued the stay and was prepared to hear all the evidence in the case before issuing a final ruling. By overturning the stay, the Court short-circuited the process that would have allowed the full case to be presented. As southpaw writes, “The procedural posture of tonight’s death penalty case is important. The 11th Circuit (which covers Alabama, Florida, and Georgia) wanted to slow down and hear this prisoner’s First Amendment appeal. SCOTUS blew that appeals process up without hearing any arguments itself…Preventing a lower court from hearing an appeal in a capital case is a radical move from the SCOTUS majority. And, although Solicitor Gen. Noel Francisco’s office isn’t involved, it appears calculated to encourage the aggressive cert before judgment strategy he has been pursuing.”
This decision was essentially a power grab by Roberts and the conservative bloc on the Court. Increasingly the Trump administration has been bypassing the lower courts’ process to hear full cases and preemptively appealing those cases directly to the Supreme Court. This is what the references to “aggressive cert before judgement” and Solicitor General Francisco above is all about. And the Supreme Court recently went along with this radical departure from judicial norms by hearing a case on the Census citizenship question on an expedited basis while the case was still being litigated in the lower courts. This decision seems to invite more of that.
So, while the headlines might seem to provide an indication that the Court is being relatively reasonable, the reality is that it is far more radical than even the most skeptical Court watchers could have believed. And it speaks to the difficulties ahead for Democrats when they have legislative and/or executive power.
Originally published at thesoundings.com on February 8, 2019.