Alito, Texas Abortion and Shadow Docket: Deja Vu again? | Austin Sarat | Verdict

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On October 8, the Fifth Circuit summarily restored Texas anti-abortion law, overturning District Court Judge Robert Pitman’s cautious 113-page ruling of October 6 directing the onerous law. And so, the Supreme Court may soon have the opportunity to rule again, via its “emergency case”, on the most restrictive abortion law in the country. It allows “bounty hunters” to denounce anyone who helps a woman protect her right to control her body.

Although many reviews have focused on What the Court will rule in this case, How? ‘Or’ What he decides that he can be almost as important to his future and to the fate of democracy and the rule of law as what he ultimately says in the Texas case. The legitimacy of the Court is linked to its ability to convince litigants and citizens that its decisions are the result of a prudent, deliberative and fair process. Its growing use of the emergency case, nicknamed the “phantom case” in 2015 by law professor William Baude, calls into question these virtues.

Critics rightly say that the court’s use of emergency orders, issued without a full legal argument or briefing, to decide issues having a huge substantial effect on the nation, can help its conservative members move their forward. program. But reconciling this development and the demands of judicial legitimacy is not easy.

This is why Supreme Court Justice Samuel Alito’s September 30 speech to a friendly audience at Notre Dame University was so important. There he plunged into the fray of scholarly criticism of the Supreme Court’s expedited use of its emergency case. He tried to reconcile this fact with the demands of reasoned decision-making while portraying critics as narrow-minded supporters.

In his speech, Alito presented a series of straw arguments to defend the phantom role. First, justice stressed that emergency decisions require rapid action. “Journalists may think that we can express an opinion the same way they state articles,” said Alito angry. “You can’t expect paramedics and emergency rooms to do the same thing a team of doctors and nurses will do when. . . time does not count.

This raises the question of why the court now decides more frequently that their EMT services are needed. In response, Alito shifted responsibility for the increased number of emergency cases from the court to the increased use of emergency requests by the Trump administration.

But he ignored the fact that such requests are also filed by Red State Attorneys General, such as when the GAs in Missouri and Texas successfully obtained an order preventing President Biden from rejecting the pre-Covid policy ” Stay in Mexico ”from Trump for upcoming American asylum seekers. from Central America.

Either way, Alito’s “blame the messenger” ignores what behavioral psychologists have known for decades: When a message receives a favorable response, the messenger comes back for more.

Next, Alito did everything possible to defend the emergency court decision by Whole woman’s health c. Jackson, which left in force the Texas law on abortion for “bounty hunters”, calling it “a purely procedural decision”. This characterization ignored the profound effect of the decision in the real world, preventing 85-90% of women from exercising their rights under Roe vs. Wade in Texas. Refusing to protect constitutional rights on the “procedural ground” that no “bounty hunter” had yet come to court to enforce the law was putting form at 50,000 feet on substance in the service of a desired result .

Alito dismissed critics’ claims that emergency orders suffer from a clouding that full court opinions help avoid: “[F]air-minded readers can easily understand the reasons for our decisions.

What he did not address was the fact that the three orders he discussed favored all conservative litigants, a consistency that might cause “fair observers” to question whether the Court was “impartial” to “ call for bullets and strikes ”. In July, a Reuters analysis concluded that the court’s emergency orders consistently favored religious groups and the Trump administration.

Such findings may have contributed to Justice Amy Coney Barrett publicly declaring in September that “we are not a bunch of partisan hackers.” (Recalling Richard Nixon’s Watergate-era speech in which he said, “I’m not a crook.”)

Alito used his speech at Notre Dame to lash out at his critics for fueling “unprecedented efforts to intimidate and harm the Court as an independent institution.” The thin skin tone might have fans of “Hamilton” remembering the satirical lamentation song of King George “Why so blue? “And supporters of the Supreme Court might wonder what happened to the sight, signed by Alito in United citizens, that “it is our law and our tradition that more speech, not less, is the governing rule”?

Rather than intimidation, it is a mark of the health of society when academics freely debate, if not criticize, the practice of a high court. “Sunlight,” Supreme Court Justice Brandeis wrote in 1913, “is considered the best disinfectant”.

This bromide does not mean, however, that judges should seek the limelight to offer their views on the court’s cases or doctrine. This practice carries an enormous risk of destroying the public’s confidence in its impartiality and impartiality.

This is the lesson Ruth Bader Ginsberg learned when she had to apologize for wading through political waters with her opinion on then-presidential candidate Donald Trump. Presumably, the preservation of the appearance of impartiality is an underlying rationale for the Canon 5 model rule of judicial conduct, which decrees that judges refrain from “inappropriate political activity”.

Alito’s September 30 speech will do little to calm the controversy surrounding the shadow dossier. And, if the court uses him again to decide the Texas abortion case, his words will be lost in a storm of criticism.

Alito has said little that will help restore public confidence in the Supreme Court. Indeed, his speech served above all to reinforce the idea that the Court does indeed have a partisan agenda, which is increasingly out of step with the beliefs and values ​​of the American people.

If Alito is serious about understanding the sources of the public’s growing disaffection with the Court, or the risks to judicial independence that such disaffection can engender, he might have been well served by consulting his reflection on one of the many lakes that dot the Notre Campus Dame river.


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