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1/ Thread on Box v. Planned Parenthood (Indiana abortion case) supremecourt.gov/orders/courtor… #SCOTUS 
2/ The petition in this case was filed in October 2018. It was initially distributed for the 1/4/19 conference. #SCOTUS then relisted it (by my count) 14 times.
supremecourt.gov/search.aspx?fi…
supremecourt.gov/search.aspx?fi…
3/ Ultimately, the Court reversed on question #1, and denied cert on question #2 supremecourt.gov/DocketPDF/18/1… Justices Ginsburg and Sotomayor would have denied review on both questions.
4/ This breakdown offers some clues about what went on behind the curtains. First, J. Breyer and Kagan did not note any dissent. They were also both in the Whole Woman's Health majority.
5/ This 3-page per curiam suggests another compromise between the pragmatic wing of the left and the Chief Justice: summarily reverse on a narrow issue, avoid oral argument on a divisive case, but decline to review (for now) the more potentially momentous change in the law.
6/ This case has all the hallmarks of Robertsian incrementalism. My thoughts on "incrementalism" and the "long game" are here: papers.ssrn.com/sol3/papers.cf… Sotomayor and Ginsburg could not hold their noses, but Breyer and Kagan will wisely play this game every chance they get.
7/ Consider the moves. The Court refuses to consider whether the undue burden standard applies to the fetal remains law bc the parties litigated the case under the rational basis test.
8/ But is this argument even correct? In dissent, J. Ginsburg points out that PP argued that the law "should not even pass rational basis test." If a law flunks the rational basis test, then it by necessity flunks the undue burden test. The issue was not waived.
10/ You can see why this option was so attractive to Breyer and Kagan. #SCOTUS issues a very narrow decision about the rational basis test that leaves undisturbed the undue burden test, for now anyway. And the Court declines to consider the far more difficult 2nd QP.
11/ Moreover, the conservatives get a minor, jurisprudential win: make the rational basis test more deferential again in this post-Kennedy world. The law does not even meet that minimal standard.
12/ Indeed, #SCOTUS favorably cites Washington v. Glucksberg: "To survive under that standard, a state law need only be 'rationally related to legitimate government interests.'" When we last saw Glucksberg, CJ Roberts charged that J. Kennedy overruled it in Obergefell
13/ But now that Kennedy is gone, the Chief persuaded Breyer and Kagan to sign onto a decision reaffirming Glucksberg. Well, not exactly. This citation only refers to the standard for rational basis review, not the identification of new substantive due process rights.
14/ @RandyEBarnett and I have discussed this point: #SCOTUS will likely reimpose Glucksberg as the test to identify new SDP rights. During Kavanaugh's confirmation hearing, he mentioned Glucksberg over and over again, but didn't cite Obergefell. This choice was deliberate
15/ But Breyer and Kagan will gladly take that compromise to avoid a ruling, at least for now, on the undue burden standard. Let it percolate.
16/ On a somewhat-related note, I still expect a GVR on the day after the last day of the term in the DACA case, based on the census case: the lower court erred by not affording enough deference to the administration's position. The Indiana case increases the odds of such a punt.
17/ A final note on J. Thomas's lengthy concurring opinion. He discusses Buck v. Bell in a very critical fashion, though stops short of saying it was wrongly decided. He only goes so far to note in a footnote that the "finding that Buck was feeble minded was apparently wrong."
18/ Does this footnote suggest that Thomas thought Buck's "procedural" due process rights were violated, but not her "substantive" due process rights? (Those terms did not exist in 1927). Indeed, Thomas puts "substantive due process" in scare quotes.
19/ @RandyEBarnett and I pose a similar question in #IntroToConlaw: If you reject “substantive due process,” must Buck v. Bell be correct?
20/ Twitter insight: the number of retweets or favorites a tweet receives is a crude indication of how far it reaches. For example, the first tweet in my thread had more than 9,000 impressions. The entire thread had nearly 35,000 impressions. Yet only 15 likes and 14 retweets.
21/ I often get this sort of ratio when I offer a unique perspective that is not conducive to other people's worldview. That is, people want to see what I think, but do not want to provide any recognition. That imprimatur is reserved for like-minded opinions worth sharing.
