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Ed Whelan

@EdWhelanEPPC

Jun 30

Supreme Court summarily reverses a Fourth Circuit ruling that allowed prisoner to pursue a Bivens claim for damages against prison officials for alleged use of excessive force in violation of Eighth Amendment. No recorded dissent.

In light of Skrmetti, Supreme Court GVRs petitions challenging crazy Fourth Circuit rulings that required health care plans to cover surgeries for gender dysphoria. "Imperial judging at its least defensible," wrote dissenting judge Wilkinson of those Fourth Circuit rulings.

Likewise, Court GVRs petition on Ninth Circuit ruling against Idaho law barring Medicaid coverage of so-called sex-reassignment surgeries.

Ditto for petition challenging Tenth Circuit ruling that would have required Oklahoma to change birth certificates to show gender identity.

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Ed Whelan

@EdWhelanEPPC

Jun 29

This Day in Liberal Judicial Activism—June 29
1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.
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This Day in Liberal Judicial Activism—June 29

Wonderful to see this one overruled.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade.

The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.

But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment.’ The Federalist No. 78.”

In its 2022 ruling in Dobbs v. Jackson Women’s Health Organization, the Court will finally overrule Roe as well as this decision.

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This Day in Liberal Judicial Activism—June 29

2018—By a 5-2 vote, the Iowa supreme court rules (in Planned Parenthood v. Reynolds) that the state constitution requires that regulations of abortion be subject to strict judicial scrutiny and, applying such scrutiny, bars a state law that requires a 72-hour waiting period between the time a woman seeking abortion provides informed consent to the abortion and the time the abortion takes place.

In June 2022, the Iowa supreme court will repudiate this ruling.

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Ed Whelan

@EdWhelanEPPC

Jun 27

Justices announce opinions in reverse order of seniority, from KBJ to Chief. If I've guessed right on remaining assignments (not likely), that will mean:
1. ACB in Louisiana redistricting
2. Kavanaugh in FCC c. Consumers' Research (nondelegation doctrine)
3. Kagan in Braidwood Management (Appointments Clause)
4. Alito in Mahmoud (religious-liberty rights of parents of public-school students)
5. Thomas in Free Speech Coalition v. Paxton (Texas age-verification law for porn sites)
6. Chief in Trump v. CASA (nationwide injunctions against executive order on birthright citizenship)

I now think that it's extremely unlikely that a justice will step down from the Court today or in the coming days.

1st #SCOTUS ruling: Trump v. CASA, Inc.: Universal injunctions likely exceed the equitable authority that Congress has given to federal courts. The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. ACB majority for 6.

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Ed Whelan

@EdWhelanEPPC

Jun 26

#SCOTUS announcement session tomorrow at 10 ET. 10 cases remain. Look for 4 to 6 rulings tomorrow.

Just a few minutes away from today's #SCOTUS rulings.

1st #SCOTUS ruling: Hewitt v. United States on sentencing. KBJ lead opinion, majority in part (5-4), plurality (3-2-4) in others.

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Ed Whelan

@EdWhelanEPPC

Jun 20

1st SCOTUS ruling today: FDA v. R. J. Reynolds Vapor Co. ACB majority, 7-2 (SS, KBJ in dissent). Retailers who would sell a new tobacco product if not for the FDA’s denial order may seek judicial review of that order under §387l(a)(1).

supremecourt.gov/opinions/24pdf…

2nd #SCOTUS ruling, also from ACB: Esteras v. United States. A district court considering whether to revoke a defendant’s term of supervised release may not consider §3553(a)(2)(A), which covers retribution vis-à-vis the defendant’s underlying criminal offense. Majority opinion for 5, with SS and KJB joining much of it. Alito dissent, joined by Gorsuch.

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Ed Whelan

@EdWhelanEPPC

Jun 17

Ninth Circuit oral argument in Trump v. Newsom takes place today at 3:00 ET (noon PT). Livestreamed here. youtube.com/live/zEitAzKSI…

Ninth Circuit panel in Trump v. Newsom consists of Judges Mark Bennett, Eric Miller, and Jennifer Sung. Trump appointed Bennett and Miller, Biden appointed Sung.
I see Miller as the key. Whichever way he goes will probably have the panel majority.

I'll be especially interested in what Judge Miller signals about his reading of Martin v. Mott (1827), topic of @jacklgoldsmith's excellent post. executivefunctions.substack.com/p/martin-v-mot…

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