Blog

Today the Supreme Court denied cert in all seven petitions for certiorari on the SSM appeals, thereby lifting stays, and allowing gay marriages to proceed in those states. There are still several cases pending in the 5th and 6th Courts of Appeals. If cert was granted today, I expected both courts to stay any proceedings. But now that certiorari was denied, thereby paving the way, I think it sends a clear signal to the lower courts that the Justices (or at least 6 of them) are happy with the opinions from Posner et al. This really changes the calculus.

But then again, depending on the draw of the panel, the lower courts may want to force the Justices to resolve it.

This is frankly stunning. There were five votes to stay all of the lower court proceedings, but not four votes for cert? Someone (maybe the Chief) joined the Kennedy gang to deprive the Court. And no dissental from Scalia.

The Court may have just simply wiped its hands clear of this with a single order. There will be no judicial resolution by the highest court of the land for the most important issue in years. This just may be the closest Judge Posner gets to being a Supreme Court justice. No wonder RBG has been so spry of late.

There is some irony that the first time the Court heard this issue in Baker v. Nelson, they summarily dismissed it. The second time it came up, they dodged it in the Prop 8 case. The third time it came up, they denied certiorari.

Update: Also, I should remind everyone that a same-sex marriage case is still pending before the Texas Supreme Court…

The 5th Circuit has now reversed the lower court, and allowed a Texas abortion law to go into effect. Assuming the 5th Circuit en banc denies review, there will likely be an emergency appeal to the Supreme Court. Will RBG recuse?

I see that my little ‘ole post generated an MSNBC article by Irin Carmon titled “Conservatives condemn Ruth Bader Ginsburg’s abortion comments.” At least I’m an “influential blogger.” From my post, it spread to National Review, Alliance Defending Freedom, and beyond. I’m glad my blog is a cog in the Vast Right Wing conspiracy 🙂

Update: A flashback to Dahlia Lithwick’s comments on Justice Scalia in 2003:

Is this brilliant jurist losing his mind? Is he so frustrated by 17 years of failure to sway an allegedly conservative court to his side on social issues that he no longer cares who he offends or how biased he may appear? Has he become so swept up by the Coulter/Limbaugh/O’Reilly game of court-bashing that he cannot see how damaging it is when played by a justice? Or is he running for elected office? What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?

The same applies equally to RBG.

I have now had a chance to read the Oklahoma District Court’s decision in Pruitt v. Burwell. More or less, it follows the reasoning of Halbig, and rejected the reasoning of King (which it called the “legal fiction” interpretation).

As just noted, the court has the benefit of two recent opinions by courts of appeals, which reach opposite conclusions. In Halbig v. Burwell, 758 F.3d 390 (D.C.Cir.2014), the majority struck down the the IRS Rule. In King v. Burwell, 759 F.3d 358 (4 Cir.2014), the IRS Rule was upheld. (“Both opinions were issued on the same day. Neither addresses the other. ) For the reasons described below, this court finds the Halbig decision more persuasive

So there isn’t too much to add on the merits front. There are also curious citations to Judge Easterbrook’s foreword to the Scalia/Garner Book, as well as a blockquote to Richard Epstein’s post on Ricochet.

But what I found most interesting about the opinion came towards the very end. After the court invalidates the IRS rule, it suggests that if Congress doesn’t like how the statute it wrote is working out, it can change it:

This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Bonnes v. United States, 759 F.3d 793, 798 (7 Cir.2014). Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written. Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will.

Halbig is indeed a statutory interpretation case. This entire dispute could be amended by an act of Congress one sentence long. It would say “strike ‘by the state’ from 26 U.S.C. §36B(c)(2)(A)(i).” That’s it. That would moot the entire litigation, give states the flexibility to create an exchange or not, and do what the supporters of the law wanted it to do.

But the chances of that happening are close to zero. There will be no effort to fix the law through the legislative channels. The Republicans in the House (and soon the Senate) have voted repeatedly to repeal the entire ACA. Efforts to amend it–even to do something that conservatives are seeking in court–will go nowhere fast. This apparent gridlock, in part, is why the President has turned to extra-legal executive efforts to rewrite the law.

So, in a sense, the district court’s offer to Congress is akin to what Richard Re has called The Doctrine of One Last Chance. Before the Court strikes down some law, they issue a narrow ruling, and give Congress a chance to fix it–knowing full well that Congress will not fix it. Then, with a clean conscience, the Court can invalidate the law in a future case. What’s different here is the court is invalidating the rule, and *then* telling the Congress to pass a new statute. This puts the cart before the horse, so to speak.

At NLJ, Tony Mauro quotes Professor Amanda Frost, who posits that RBG’s statement about abortion is “a single sentence and a statement of fact,” and was not “a decision as to whether the law is or is not a health measure or an undue burden.” Read in the context of the question asked, and the answer provided, I disagree.

Here is the exchange:

JR: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

RBG: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. 

Jeff Rosen asks how can “advocates” (those arguing before the courts) make sure that “reproductive choice is protected.” Phrased differently, Rosen is asking how constitutional rights, specifically, the right to access an abortion, can be protected by “advocates.” Rosen then asks if the legislatures can be trusted to “protect” “access to reproductive choice.” Or phrased differently, if the legislatures can be trusted to guarantee certain constitutional rights. The question was geared directly at whether legislatures are taking steps to ensure constitutional rights are protected. It was a very finely worded question–and he was clearly baiting RBG to comment on a recent spate of abortion laws passed in several red states.

What does Justice Ginsburg answer? “How could you trust legislatures in view of the restrictions states are imposing?” In the context of Rosen’s question, she is speaking directly to whether you can trust states to not impose limits on “access to reproductive choice.” This much is clear.

She continues, “Think of the Texas legislation that would put most clinics out of business.” Read in isolation, this can be seen as a statement of fact–as a result of the Texas law, many clinics will go out of business. But, in the context of her previous sentence, that isn’t the import of her answer. In the context of her answer, the fact that the law passed by Texas would put clinics out of business is proof they can’t be trusted to protect “access to reproductive choice.” She was supplying an example to Rosen’s questions about state legislatures that can’t be trusted to protect access to abortions.

So yes, if you read the single sentence about “the Texas legislation that would put most clinics out of business,” she is making a statement of fact. But if you read the previous sentence, and the question posed before, the context of her views becomes much more clear. She isn’t merely stating as a matter of fact that clinics will close, but that the Texas legislature can’t be trusted because their legislation would have that effect, and limit “access to reproductive choice.”

All of this discussion reaffirms my belief that Justices and Judges should not be speaking about such matters, tip-toeing ever so close to cases that are still pending. I think Justice Scalia was wrong to make statements about the pledge of allegiance, but comported himself properly by recusing. I would expect the same of RBG, but I am very doubtful.

I would not be surprised if the Texas SG files a motion for her recusal. Imagine during oral arguments, Justice Ginsburg asks the Texas SG something to the effect of, “Counsel, I recognize that there are certain reasons put forth by the Texas Legislature as to how this protects the health of the mother, but I find that they are pretextual, and with strict scrutiny should be rejected. Isn’t it true that the true purpose of this law was to make it harder for women to access abortions by shutting down many clinics?” Although this would never happen, the response should be, “with respect Justice Ginsburg, it seems you have already answered that question in The New Republic.”

In a wide-ranging interview with Jeff Rosen, Justice Ginsburg seemed to weigh in on a Texas abortion case currently pending before the 5th Circuit:

JR: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

RBG: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. The courts can’t be trusted either.

It seems that Justice Ginsburg has made up her mind about this law. It is not a health measure, but a law to put clinics out of business. This would be a per se “undue burden” under Casey. She doesn’t trust the Texas legislature in the least.

Also, Justice Ginsburg doesn’t think much of the courts deciding these cases. They “can’t be trusted either.”

This case may be up for certiorari in the not-too-distant future. Is this a ground for disqualification? Seems like it.

Update: In response to comment below about the fact that Scalia, Ginsburg, and others have commented about abortion before, I wrote:

What makes this comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other. Scalia and GInsburg have talked about abortion and the death penalty ad nauseum for decades, but it was always framed in terms of the issues they discussed in their dissents–not specific cases that may come before the Court. RBG’s comments seem akin to Scalia’s comments about the pledge of allegiance while the Newdow litigation was making its way through the lower courts. Scalia did recuse there.