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Steve Vladeck

@steve_vladeck

7 Sep

1. Now that a lot more people are paying attention to #SCOTUS's "shadow docket," here's a quick #thread on what, exactly, people *mean* when they use that term — and why, even before Wednesday's #SB8 ruling, it's been a source of increasing controversy over the past few years:

@WilliamBaude

2. The term was coined by @WilliamBaude in 2015 as a catch-all for just about everything #SCOTUS does *other* than decide the big "merits" cases it hears each Term — in which it receives multiple rounds of briefing; holds oral argument; and hands down lengthy, signed opinions.

@AdamSFeldman

3. The "merits" docket includes only ~70 cases per Term. As @AdamSFeldman has shown, there's been a sharp decline in these cases in recent years. During its October 2019 Term, the Court handed down 53 decisions in such cases (the fewest since 1862); this Term, there were only 56.

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Steve Vladeck

@steve_vladeck

4 Sep

I had missed this, but there’s a new cert. petition from Lisa Blatt asking #SCOTUS to overrule its 1971 decision in Bivens — and make it absolutely impossible for victims of constitutional violations by federal officers to sue those officers for damages:

supremecourt.gov/DocketPDF/21/2…

Last year, in Hernández v. Mesa (in which I represented Hernández), a 5-4 majority refused to recognize a *new* Bivens claim, but only two of the Justices would’ve discarded Bivens altogether, leaving it in place for ordinary constitutional violations by law enforcement officers.

If the Court takes the additional step of overruling it, that would erase even the specter of potential liability for constitutional violations by federal officers — and, thus, the deterrent effect on which the Court had defended the doctrine for at least the last 27 years.

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Steve Vladeck

@steve_vladeck

2 Sep

Just a reminder that back in April, the very same 5-4 #SCOTUS majority flat-out *ignored* procedural obstacles to issue an emergency injunction that blocked California's #COVID-based restrictions on in-home gatherings based upon a *new* interpretation of the Free Exercise Clause.

The ruling in Tandon v. Newsom should've been possible only if the right was "indisputably clear." It wasn't, but the Court issued an injunction anyway. Tonight, the Court refused to protect the "indisputably clear" right to an abortion because of *possible* procedural obstacles.

When you put these rulings by the same 5-4 majority side-by-side, you see much of what's wrong with the Texas decision: A Court untroubled by procedure went out of its way to expand religious liberty, but hid behind procedural Qs to refuse to enforce a right already on the books.

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Steve Vladeck

@steve_vladeck

1 Sep

It's 12:01 CDT here in Texas. #SCOTUS has not acted.

That means #SB8 — the most restrictive abortion law since Roe — is now in effect, and that virtually *all* abortions in Texas after the sixth week of pregnancy (when many women do not even *know* they're pregnant) are illegal.

Despite what some will say, this isn't the "end" of Roe.

*No* court, from the district court to #SCOTUS, has ruled on whether #SB8's substantive restriction on abortions is even constitutional.

And courts may yet put SB8 on hold — perhaps as early as later on Wednesday.

But until and unless a court blocks #SB8, it will effectively end abortions after the sixth week across Texas; and the fact that #SCOTUS is *letting that happen* is a pretty ominous harbinger of what's likely to come down the road, whether in this case, Dobbs, or another.

/end

Read 6 tweets

Steve Vladeck

@steve_vladeck

31 Aug

At some point, it’s worth stepping back and having a broader conversation about the frequency with which #SCOTUS is deciding incredibly significant questions on incredibly tight schedules. This is now the third very different emergency in the past week—all with huge consequences.

Some of it, as I’ve written at too much length, is about the Justices’ increasing willingness to issue emergency relief (and parties taking advantage of that). But there’s a broader problem here—with rules governing timing of litigation and the creation of artificial emergencies.

Take the Texas abortion law. Yes, it goes into effect tomorrow, but it was enacted over the summer, and the lawsuit now at #SCOTUS was filed in mid-July. There are doctrinal reasons why it took this long to get to this point, but maybe those rules are part of the problem, too.

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Steve Vladeck

@steve_vladeck

31 Aug

1. Absent intervention from #SCOTUS or the Fifth Circuit, #SB8 — which prohibits most abortions in Texas after the 6th week of pregnancy — goes into effect tomorrow.

Here's a quick #thread on how the law is cynically and deliberately designed to make such intervention *harder*:

2. If all the bill did was ban most abortions in Texas, it would be easy enough for courts to block it while constitutional challenges are sorted out. Indeed, that's what's happened in other states that tried to adopt similarly aggressive restrictions on pre-viability abortions.

@tribelaw

3. But the bill also leaves enforcement entirely to private parties, and not to the State. Most have seen this as a cynical ploy designed to turn neighbors against each other with regard to abortions, as @tribelaw and I described in the @nytimes in July:

nytimes.com/2021/07/19/opi…

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