The Powerful New Alliance That Controls the Supreme Court
By: Dahlia Lithwick and Mark Joseph Stern (MSN)
S E E D E D C O N T E N T
There is a new 6-3 supermajority at the Supreme Court, one that agrees on the answer to existential questions about the authority of the court itself. Its position is this: It is unified around the idea of preserving its own power. The existence of this new configuration became undeniable when, at oral arguments Monday morning about the future of Texas' abortion bounty law, S.B. 8, Justices Amy Coney Barrett and Brett Kavanaugh and Chief Justice John Roberts largely joined forces with the court's liberals to punch back at Texas' fatuous claims that states can shield unconstitutional laws from federal court review.
© Provided by Slate Photo illustration by Slate. Photos by Sarah Silbiger/Getty Images and Chip Somodevilla/Getty Images.
This group's concerns were not unitary. The chief justice, unsurprisingly, doesn't like it when state courts ignore the directives of the Supreme Court. Kavanaugh was worried about the implications for gun owners and gun dealers if blue states were to pass copycat laws of S.B. 8, allowing citizens to collect bounties by suing gun owners anywhere in the country. And Barrett evinced fear that those suffering constitutional harms could find themselves in state courts someday, unable to air and effectuate federal constitutional rights. In short, Roberts worries, as he always does, about Supreme Court supremacy, and Barrett and Kavanaugh are smart enough to see that the wisdom of nullifying fundamental constitutional rights at the state level will always turn on whose ox is being gored.
Good enough, for the present moment, if it means that Texas is likely to lose its fight to evade judicial scrutiny for S.B. 8, a law that not only bans abortion at six weeks but also lets bounty hunters sue providers and their "abettors" for $10,000. But this alliance tells us nothing about how Roe v. Wade will fare when the court squarely takes on abortion rights in next month's Dobbs v. Jackson Women's Health Organization. What we know now is that there are certainly going to be reliably three votes—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—for the proposition that abortion rights are made up and unworthy of protection, and indeed that any mechanism that ends abortion, be it state nullification, fictitious heartbeat claims, or unsubstantiated racial eugenics claims, is a good thing. Thomas, Alito, and Gorsuch are not, in Thomas' own words, "evolving" as jurists.
The question remains, and it's an important one, what happened to Barrett and Kavanaugh? Both justices were perfectly happy to sign off on the shabby one-paragraph shadow docket order that allowed S.B. 8 to go into effect in September. The issue before the court this week—still raising "complex and novel antecedent procedural questions"—is jurisdictional and hypertechnical. And yet these concerns should have been evident to anyone looking at the issue all summer: S.B. 8 was explicitly designed to avoid federal scrutiny; it could be copied to violate other rights; it represented a direct threat to Supreme Court authority. Somehow, none of these features swayed Kavanaugh or Barrett back in August. What changed to put these two justices into play now?
One answer is public condemnation: the outcry over the shadow docket throughout September and October, the backlash against the justices' partisan speeches, and the tanking poll numbers for the Supreme Court. It is possible that the two newest justices worry about things like their own court's legitimacy. In large ways (they'd like to be employed in 20 years on a court that doesn't have 60 members) and small (they really want to be feted at D.C. cocktail parties and restaurants right now), neither of them is entirely willing to go Full Vader on America at this point. That means it's possible that public outcry and organizing around the court affects them.
Another data point to support this theory: On Friday, Kavanaugh and Barrett joined Roberts and the liberals in a 6-3 order rejecting a challenge to Maine's vaccine mandate, which permits no religious exemptions. Barrett wrote a brief opinion, joined by Kavanaugh, explaining the perils of intervening "on a short fuse without benefit of full briefing and oral argument." Clearly, these two junior justices are cognizant of the fury over their abuse of the shadow docket and, unlike Alito, eager to contain it.
Kavanaugh's primary reason for questioning S.B. 8's gambit was revealed in Monday's arguments as … a concern for gun owners. We'll take it. Barrett, who is quickly establishing herself as one of the most able questioners on the bench, may genuinely care about the ongoing preservation of constitutional rights and the role of the judiciary. We'll take it. But what does any of this signal headed into a term in which gun rights, religious freedom, (possibly) affirmative action, climate change, and voting rights may all be in the crosshairs?
Most obviously, the S.B. 8 litigation sends a warning to other conservative litigants before the court: Don't overplay your hand. The law's proponents were brash from the start, boasting that they designed the law to evade judicial review. And after the justices allowed it to take effect in September, S.B. 8's defenders took their arrogance to a new level. In one stunning brief, Jonathan Mitchell—the conservative lawyer and former Texas solicitor general who drafted S.B. 8, then teamed up with the state to defend it—rejected the Supreme Court's power to say what the law is. States, he wrote, "have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." (When Roberts quoted this very language during arguments, Texas Solicitor General Judd Stone declined to defend it.)
Mitchell also took aim at the authority of the court's precedents. "The Supreme Court's interpretations of the Constitution," he wrote, in the same brief, "are not the Constitution itself—they are, after all, called opinions." Mitchell also engaged in some wink-wink-nudge-nudge hedging about the future of Roe v. Wade, writing: "Abortion is not a constitutional right; it is a court-invented right that may not even have majority support on the current Supreme Court. A state does not violate the Constitution by undermining a 'right' that is nowhere to be found in the document, and that exists only as a concoction of judges who want to impose their ideology on the nation."
It is safe to assume that Kavanaugh and Barrett do not appreciate litigators smearing the many justices who have upheld Roe over five decades as rogue and lawless and ideologues. That list, after all, includes the current chief justice, as well as both of their predecessors. (Kavanaugh also clerked for Justice Anthony Kennedy, who repeatedly voted to save Roe.) Nor do they necessarily appreciate litigators assuming that Kavanaugh and Barrett are already in the tank for overturning Roe. As a rule, justices do not like being treated as trivial pawns in a larger political game.
Perhaps most critically, these justices do not seem to appreciate arguments that exude disdain for their institution. It's easy to see why Mitchell thought he could get away with this rhetoric; the majority's shadow docket order raised the possibility that five justices agree with his position that Roe is absolute trash undeserving of any respect, effective immediately. But whatever his merits as a lawyer, Mitchell is an exceedingly bad politician: After Donald Trump nominated him as the chairman of the obscure Administrative Conference of the United States, he couldn't even win confirmation from a GOP-controlled Senate. The anti-abortion movement's apparent faith in his ability to drag Roe to the curb before the court has signed off may be misplaced.
Most litigators are not as insolent as Mitchell. But his attitude is evident among many of the parties asking the court to overrule Roe in Dobbs. His own brief, a misogynistic screed that impugns the integrity of every justice who supports Roe, declares that women can "control their reproductive lives" by simply "refraining from sexual intercourse." This attitude and approach are the cornerstone of Mississippi's litigation strategy too. The state first persuaded SCOTUS to take up Dobbs by asking the justices merely to weaken Roe. Then, once the court had taken up the case, Mississippi demanded that SCOTUS overturn Roe altogether—a bait-and-switch for the ages. (Mississippi Attorney General Lynn Fitch also insisted that God chose her case as the vehicle for abolishing abortion rights. One might reasonably assume that Kavanaugh and Barrett prefer to think that their votes are not predetermined by a higher power who works through elected Mississippi officials.)
Most conservative litigators don't swagger into the Supreme Court like they own the place. The lawyers asking SCOTUS to expand the Second Amendment may know they're going to win; so do the lawyers asking SCOTUS to gut climate regulations, turbocharge religious freedom, eradicate affirmative action, and undermine voting rights. But for the most part, these attorneys still perform humility before the justices. By doing so, they take part in the grand pageantry that allows Kavanaugh and Barrett to view themselves as humble servants of the law rather than partisan actors in a zero-sum political game. Silly as this pageant may seem, it is especially important in momentous cases that implicate the court's legitimacy. S.B. 8's proponents thought they could forgo these formalities, assuming the fall of Roe is a foregone conclusion. It might still be. But on Monday, Kavanaugh and Barrett reminded them, in surprisingly blunt fashion, not to count the votes before they're cast.
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trolling, taunting, and off topic comments may be removed at the discretion of group mods. NT members that vote up their own comments or continue to disrupt the conversation risk having all of their comments deleted. please remember to quote the person(s) to whom you are replying to preserve continuity of this seed.
We may be getting some unexpected decisions from SCOTUS.
Still makes me nervous, tho.
I do respect Chief Justice Roberts. He seems like he knows his constitutional law and keeps his politics out of it
[deleted]
Good and bad I think. Like I think they may throw out the Texas abortion law yet allow the one in MS.
This snippet in the article is in regards to that "undecision" they made back in September concerning the Texas abortion bill. They're looking at poll numbers, too, and don't like what they've seen. Now they're trying to back track and become "likeable" again
I hate to agree with Kavanaugh but he is right. If they allow that TX law, what is to stop any other state from doing the same concerning other issues.
it was an "undecision" because the main issue of SB. 8 wasn't ripe for decision, by making that "undecision" they allowed the law to go into force, that made the issue of ultimate federal jurisdiction ripe for judgment....
The court followed long standing procedures...
Can't help that all the abortion supporters can't seem to get their emotions and fears over Roe being overturned to see what is really going on...
Bingo! it make a constituancy superior to the law....
What is going on is two separate cases.
I agree with him, too, and Barrett. If that dumb law is allowed to stand, people could lose their constitutional rights in a court room
That's not necessary.
In a way it almost reminds me of mob justice.
Letting people run around with pitchforks and torches instead of going through a court of law.
Yep, democracy in action....
What's not necessary?
That. Please stick to the topic
I thought I was, from the article you quoted above...
"That means it's possible that public outcry and organizing around the court affects them."
The public outcry surrounding the court is directly over the decision to let the law take effect and the case today, and is created by the Abortion rights crowd.... (although who is creating the outcry isn't mentioned in the article, all one needs to do is look at the news articles online to see who it is) or the article creators speculations that two justices that are the point of the article might be changing based upon that outcry?
Are you saying that this posting is to be so narrowly construed that we can't even mention the truth? Not looking to argue here just trying to clarify the boundaries...
Oh I do think you're looking for an argument but you won't find it here. Your original statement pretends that conservatives never get emotional over anything.
People take their rights quite seriously. If someone suggested taking your guns away you would get quite emotional. That is why I don't want that interjected into my seed.
Every body is emotional over something. Let's leave it that
{chuckle} Au Contrare! Republicans get emotional quite often and my original statement pretends nothing of the sort.... But everyone does have their own opinions and sensitivities...
Yes people do take what they perceive as their rights most seriously, ignoring that as a basis for discussion removes an important facet of the discussion... Besides, the original author speculated directly at that point...
But fair enough it is your seed and as such you get to control the discussion.. It is your right to limit it in whatever manner you choose....
On that basis I can agree, everyone can get emotional about something that is important to them...
So I will bow out of the discussion, if I upset you or offended you, I apologize, that wasn't my intention....
NWM
I'm not upset or offended. I'm not one of those emotionally fragile pearl clutchers constantly searching for a fainting couch.
I do appreciate your comments
they're walking a political tightrope. they all know that the majority of voters are fucking sick of thumpers trying to impose their warped ideology on america and that women are the largest single voting block in the usa.
I can't count the number of lawyers and media heads that try to discern an SCJ's position on a case from his or hers questioning at oral arguments.... And turning out to be wrong....
If this article is trying to make that point then I heartfeltly agree with it...
IF it is trying to make the the point that some of the justices are changing their long held beliefs in the law over politics and their emotions over the way the case is presented? Then I will vehemently disagree with it....
The writer in my opinion has written a very biased piece based upon his opinions, wishes and dreams and doesn't know very much about the court or how it works....
There only two thing the talking heads can do at this point, cry, whine and knash their teeth, or speculate on outcomes looking into their crystal balls....
My opinions on Roe are irrelevant, there is no such thing as settled law in the US judicial system, the law is what those 9 justices and the constitution says it is and Roe is a construct of the 9 justices that decided it....
These 9 justices could decide it a different way, and that scares the heck out of a lot of people.... But that is irrelevant to the current case before the court.... The current case involves a legislatures ability to write laws that are outside judicial review....
Clearly for the US congress, that right is absolutely written into the constitution and very well established by precedent, we have three independent branches of government and the ability to write law is solely the purveyance of the US Congress...
The issue here is Can a state legislature do the same thing when it comes to the US Supreme Court? Write a law that is beyond the reach of the court?
It is a state vs feds issue, and in that context, throw the politics out the window... There hasn't been a case this important since Bush vs Gore where the florida court said the US Supreme Court couldn't stop the shenanigans that was going on in Florida.... In a unanimous decision not only did they stop it they clearly said don't try it again...
I suspect this will get defeated not because of anything to do with abortion rights or the lack of, it will get decided on the basis of supreme power over the courts and superior jurisdiction....
And this is of course My Humble Opinion....
It is about more than the one case. It is also about president. If they overturn R v W or modify it, it is going against president already set.
Yes it is, the issue presented in that law goes to the heart of judicial review...., bypasses it in effect nullifies it..... I don't care what side of the political aisle your on, if you believe in law then that law has to go down....
No question about it...
Nope, they are just setting a new precedent on the issue, you know what? That is what the court does.... Setting and Changing precedents is the courts bread and butter....
Which is what worries me about the MS case. They would essentially modify existing precedent. Even though the AG admits what her objective is.
Yes the Mississippi case goes right to the heart of Roe vs Wade.... It could easily change everything or nothing.... What I'm hoping, is it bases it's decision in something more solid that an ephereal "Right to Privacy"
I didn't read this article, but I've read several on the topic already. What burns me is every time a writer mentions, "the right to an abortion". Roe wasn't decided on a right to a medical procedure, it was decided on the right to privacy. Perhaps if talking heads and writers were more accurate we might not even be talking about this issue.
Another Bingo! Yes there is no constitutional right to a medical procedure.... And the justices in the Roe decision created a legal fiction called a "Right to Privacy" as a unwritten right in the constitution... They could have decided it in Roe's favor in a number of different ways, but they became legislators in fact by creating the basis out of nothing to base their decision on.... They in essence overreached... A different court can correct that anytime they choose.
I agree that if the talking heads would stick to the real issues rather than what they believe should happen we would be much better off...
I disagree. It's not explicitly stated but the court found in Griswold v. Connecticut that penumbras in the Constitution and the Bill of Rights do refer to privacy against government intrusion. Precedent was also established in earlier cases involving parental control over childrearing—Meyer v. Nebraska and Pierce v. Society of Sisters.
Current populist sentiment is that the government can't dictate what their children learn in school, but must dictate what they do with a doctor? It really can't go both ways.
Well we can disagree on it's reasoning or progenies but it is now considered a fundamental right..... (enumerated or not) what it did was effectively expand the law into areas way outside the issue at bar in Roe.... It was also an ideal taken up by congress and codified in many situations... The right to privacy cannot be overturned without upsetting our entire fabric as a society...When I talk about changing the basis in Roe I mean resetting to to a more sound footing...
Yes populist sentiment can be and often is at cross purposes.... This is what we have courts to sort out.... And the issue with those two examples is one is legally inopposite of the other... Either the government is an imperial dictate machine or it isn't... If it is, then they can do both, and if it isn't then they shouldn't be doing either....
It feels like a political bellweather issue doesn't it.... {chuckle}
Certainly does.
The writers seems amazed that these justices might decide a case other than how Trump or some evangelical constituency would prefer. Too many journalists and politicians assume the worst in these justices. You don’t get to where they are without being able to consider a case from multiple angles. And so to that point:
It doesn’t signal anything. I have to roll my eyes every time observers of the court think they can figure out what a justice will do on a future case. They all try to explain to the Senate and the country, during their confirmations, that they can’t just say they would rule a certain way on a general issue or a hypothetical case, but no one listens. They all think the justices are trying to scam us. There is way too much consider in real cases, and each requires a rigorous examination on its own merits.
It’s hard to believe this douchebag graduated from law school with this attitude, much less being so stupid as to basically argue to the Supreme Court that their holdings are not law.
I certainly see your points about the author's speculations
When Trump was considering who to nominate before he nominated Kavanaugh he also considered Barrett at that time and their qualifications were published then. Personally, I thought Barrett was the best choice but I wasn't aware then about her extremely strong views against abortion which she has made very clear. I will withhold judgement on Barrett until I see if she is capable of overcoming both her personal feelings and political direction by voting to retain Roe v Wade and vote against the Texas B8, in which case I will consider her a justice who upholds the law above personal feelings and political pressures.
Buzz,
Texas's SB8 is going down in flames, (probably unanimously) it has nothing to do with the abortion issue and everything to do with Texas law/courts being above and outside federal judicial review.... It can't stand if we are a nation of laws... it's the exact same issue as why the Supreme Court throwing out the Florida Supreme courts ruling that the 2000 election recounts could continue after certification and the US Supreme Court could not intervene...
The US Supreme Court slapped that one down unanimously as well... States cannot block federal judicial review and remain a state.... And since the Civil War did away with secessionism as a political option, they are stuck with it....