Wednesday, May 15, 2019

Defensive Certiorari Grants

Gerard N. Magliocca

Supreme Court watchers know all about "defensive certiorari denials." This is when a Justice votes to deny review of a case because she is worried that a grant will lead to a bad outcome on the merits.

The Alabama abortion law just enacted may present the opposite situation. The lower courts will make quick work of the statute, relying on Roe v. Wade and Planned Parenthood v. Casey. Then Alabama will file a certiorari petition. At first glance, you might think that the four liberal Justices would vote against review, fearing that the Court will overrule these cases.

They may instead view this as the best vehicle for reconsidering Roe and Casey. Here's why. First, forcing the Court to consider this issue in a presidential election year will put more pressure on the Court's uncertain members about whether they want to walk the plank on this issue. Second, the Alabama law gives the Court no way to evade the basic question. Neither statutory construction nor a narrow ruling is possible for a law that expressly bans all abortions with only one exception. Third, the lack of exceptions and the stiff criminal penalties make the Alabama statute an especially unattractive case for the Justices interested in narrowing abortion rights.

All three of these reasons might explain why five Justices would deny review of Alabama's certiorari petition. But only four Justices need to vote yes. Indeed, you could even argue that they should do so after the District Court enters its inevitable judgment (assuming one party files a petition). After all, what will review in the Eleventh Circuit add to the story? Basically nothing. So don't be surprised if the case gets to the Court quickly.


Very crafty. Am not aware of a case where the liberals wanted to rush a case along, skipping the mid-appellate level. I think that is a bit much.

There are other cases in front of the Alabama law, which won't even come in effect until January, I believe. One set has been relisted many times -- the Box cases -- that provide a chance for the conservatives to chip away.

So, we might have to wait and see first. The "playing chicken" strategy has some dangers with this bunch as well. I do think Roberts rather not face up to things right away. He will not want to speed things up. Doesn't it require FIVE votes to do that?

If the direct battle is not in place for a June 2020 ruling, will not be surprised.


Saw one reply to this piece on Twitter saying that the conservatives are aching for a direct challenge and rather do it when the Republicans are in power. Seems questionable to me, including as an incitement to the Democrats (which would matter if they won big in 2020). But, you know, we shall see.

Even if Cert were to be granted, whether by conservatives or liberals, the "court of public opinion"* as we near 2020 elections might cause SCOTUS to rescind/withdraw Cert as too political. In my view, granting Cert on Alabama-here-I-go would be perceived as highly political by SCOTUS, especially with Trump's blanket details of Congress' Article I powers.

*i.e., non-constitutional "power of the purse"

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Very possible.

Roe opponents are jumping the gun because they likely do not have five votes to reverse. Roberts has twice demonstrated in his lawless opinions upholding Obamacare that he will cave to progressive legal establishment pressure and the pressure to defend Roe will be terrific.

They should have waited until Ginsberg dies on the bench and Trump replaces her with another Kavanaugh.

However, there may be votes to narrow Roe/Casey. If this occurs, the majority is unlikely to revisit the issue again very soon to reverse Roe entirely.

I agree they're jumping the gun given the Court's current lineup. You *might* get 4 votes, but Roberts is the new Kennedy, only a fool would rely on his vote.

OTOH, it normally takes a while for a test case to work its way up through the system, and Ginsberg IS 86, even if she did beat this cancer. There's a non-negligible chance that she'll have been replaced before the test case would hit the Court in the normal sequence of events. It might be this that they're banking on.

I don't expect this case will follow the usual, gradual sequence, it's going to be expedited to the Court to be argued while Ginsberg is still alive and voting.

Or maybe it's just about forcing pro-abortion candidates to go public in advance of an election, and they're not really expecting to win.

Our dynamic dyslexic duo, Brat and Bert, harken on their unconscious (?) parallelism of a Justice Ginsberg death watch. Perhaps there should be Gorsuch and Kavanaugh death watches, as well as for the more elderly Justice Thomas. Bert's " ... jumping the gun ..." might be a wayward reference by a 2nd A absolutist. Both Brat and Bert take aim at CJ Roberts.

Segue to some Trump nominees for judicial appointments declining to give their "approval" to the legitimacy of Brown v. Bd. of Educ. (1954, Unanimous), and add this to the former Slave States' "experimenting" with the lives and values of women suggesting that to Trump's base MAGA refers to pre-Roe and pre-Brown, maybe even back to pro-Dred Scott.

Or maybe it's just about forcing pro-abortion candidates to go public in advance of an election, and they're not really expecting to win.

Or, candidates that think women should have the right to choose how to control their bodies pursuant to their personal, family, moral, health etc. needs.

The Economist had a profile of Judge Amy Coney-Barrett, who some think is the leading conservative dream candidate to replace RBG. I would have preferred her to Kavanaugh, but Trump was said to be turned off by her professorial tone and the PTB favored a former classmate of Gorsuch that had a career of being a right wing operative.

I continue to think before we talk about laws not even in force yet that more attention should be given to the cases already there. See, e.g, the relist watch over at SCOTUSBlog that lists three of them.

Look, she's 86. That automatically puts her on a "death watch". Sure, she might live to a 117, but that's not the way the odds read.

Consulting an actuary table, knowing that she's 86 and a female, and nothing else, she's got an expected lifespan from today of a bit over 6 years. So starting a case now and expecting her to have been replaced by the time it hits the Supreme court is a bit of a long shot, though hardly impossible.

OTOH, if they committed to this strategy late last year? Would have been a reasonable expectation, given her diagnosis. She really missed a bullet there.

And I'm glad for her, I'm a cancer survivor, too. I just wish she'd taken the hint and retired to enjoy her good luck in some all inclusive beach resort, instead of mucking with the Constitution.

I might have liked Barnett better, too. But I think Trump is saving her for Ginsberg's replacement, as a sop to the idiots who think particular seats are reserved for particular races and/or sexes. At least that's the speculation I've heard.

I figure people would have accepted two women.

There are other conservative women judges out there, including on the state courts.


The visibly fading Notorious RBG has been on the Dem death watch for a decade now. They were pressuring her to retire during the Obama administration so he could replace her. Now the Donkeys are just hoping they can take the WH in 2021 and she can survive until then.

While I admire Thomas' jurisprudence, I would not mind at all if he took the advice the Dems gave RBG and retire so Trump can replace him with a similar constitutionalist thirty years younger.

Finding not just a similar constitutionalist, but a similar constitutionalist with the same lack of concern about elite opinion, would be a difficult task.

In some ways the hell the Democrats put him through improved him as a jurist. Hopefully Kavanaugh will exhibit the same effect.

Finding not just a similar constitutionalist, but a similar constitutionalist with the same lack of concern about elite opinion, would be a difficult task.

Kavanaugh was quite concerned about "elite opinion," unless that doesn't mean "elite Republican opinion." Kavanaugh was a life-long Republican political operative, which you know, if you like that sort of thing might be okay, though he had other baggage too. He acted with much concern about said opinion. Kavanaugh was picked for just this in mind.

It's one reason, granting you were going to get some conservative minded type, I rather someone else. She also took some care in satisfying conservative opinion but was not so much of a long time partisan operative and came from a somewhat different background. Kavanaugh was the standard political establishment option here.

In some ways the hell the Democrats put him through improved him as a jurist.

Poor guy. Maybe, they should have not had hearings at all for him.

If people want constitutionalists who are not too beholden to elite opinions, there are a range of options. This includes those who are using the first term as a code word to mean whatever constitutional ideological mindset they favor. As far as things go, the Trump picks were both rather standard here, though both show each member of the conservative wing has their own specific styles.

Anyway, to go back on topic, the strategy of the pro-choice side in Planned Parenthood v. Casey at the Supreme Court was to push for a bright line so much that Justice O'Connor after almost ten minutes of oral argument pushed the advocate to focus on the specifics of the law. As Linda Greenhouse noted in a recent column, Justice Souter pushed to frame the question presented to lower the temperature from an old or nothing result.

The case being decided in a presidential election year, politics was at least somewhat on the table. Who controls nominations and confirmations will affect how the law is applied. The conservatives having five votes, and the Chief Justice, figure they have the upper hand here as well.


Gloria Steinem was interviewed by Christiane Amanpour yesterday on the AL law. Steinem pointed out that the anti-abortion movement going back in time reflects white supremacy patriarchy AND racism and the fact that whites are not reproducing at effective rates. SPAM, and perhaps Brett as well, can attest to that. To the extent that the anti-abortion movement increases the people of color demographics, why conservatives can address such with voting restrictions on people of color in the former Slave States post-Shelby.

I think you have "pointed out" and "asserted" confused. Actually kind of a hilarious inversion when you reflect on Planned Parenthood's origins as an anti-black eugenics organization intended to reduce reproduction by the "less fit" races.

A pretty effective one, too. The black abortion rate is nearly 3 times as high as the white rate, though that's down from their peak of almost 6 times as high, back in the 70's.

All races' abortion rates started dropping after the invention of ultrasound exams, of course. The pro-abortion movement has been engaged in a fighting retreat ever since.

"similar constitutionalist"


" intended to reduce reproduction by the "less fit" races."

This is an oft-repeated inaccurate statement. If anyone takes the time to read any fair minded assessment of Sanger's life they can see this. This one even has pictures:

"The black abortion rate is nearly 3 times as high as the white rate"

Interestingly black unemployment and poverty rates are also around 3 times higher than the white rates...One wonders...

"All races' abortion rates started dropping after the invention of ultrasound exams"

Sure, it doesn't have anything to do with better access and use of contraceptive resulting in fewer unwanted pregnancies.


A funny thing about these laws is how they're usually made by men who seem pretty obtuse about how, well, 'women parts' work:

As to ultrasounds, women typically get them around the 18th-20th week of pregnancy-well after when most of the laws at issue take effect.

Here's what a fetus at six weeks looks like:

That looks like the thing from Alien...

Mr. W:

I have read Saul Alinsky's Rules for Radicals and am well aware of his fourth power principle: "Make the enemy live up to its own book of rules." Save it for someone who does not know better.

I will take a justice who will enforce the law as written 95% of the time compared to one who ignores or rewrites the law 100% of the time to rubber stanmp their favored policies.

"I have read Saul Alinsky's Rules for Radicals"

That's funny because I have never thought to waste my time cracking that silly book. Of course, it is titled for Bart...

"'Make the enemy live up to its own book of rules.' Save it for someone who does not know better."

Any person aiming for intellectual or moral integrity will strive to live up to their principles, but I can see where for a partisan, rather, this could be seen as an unacceptable hampering on 'winning.'

"enforce the law as written 95%"

But of course this isn't some confidence interval type failure but a common pattern with Bart's "constitutionalists" rulings (see, New York v. United States, Shelby v. Holder, Alden v. Maine, etc.,). Of course Bart is a fellow who while ranting about 'the law as written' also thinks the *written* provisions of the Constitution should all be interpreted under an *unwritten* 'presumption of liberty.'


"voting restrictions on people of color in the former Slave States post-Shelby"

Or gerrymandering. That's far more effective in denying the will of the people.

Some men don't know how or if their own parts work but that doesn't stop male legislators from wanting to control her uterus. It's a form of dominion, male supremacy., male proselytizing and avoiding responsibilities, etc.

Shag, how can one conclude otherwise, given many movement conservatives wouldn't spend a penny of effort to actually help the well being of children born?

Mr. W:

If you want to understand modern Democrat propaganda techniques, Rules for Radicals is mandatory reading. Saul Alinsky borrowed classic communist agitprop and gave it an American twist. Obama and Clinton not only read and employed the Alinsky manual, but Barry the Community Agitator taught its power principles to groups like ACORN and the Democratic Socialists of America.

The book is not particularly well written, but you might want to at least take a look at Wikipedia summary of Rules to understand the theory behind your own arguments.

SPAM is particularly qualified having authored a book not particularly well written. Perhaps Wikipedia, or Wikileaks carries a summary of his work of friction.

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