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The Lawlessness Of The Supreme Court

A view of the U.S. Supreme Court on September 1, 2021 in Washington, DC. A new Texas law that prohibits most abortions after six weeks of pregnancy went into effect on Wednesday. The U.S. Supreme Court did not act on a request to block the law. (Drew Angerer/Getty Images)
A view of the U.S. Supreme Court on September 1, 2021 in Washington, DC. A new Texas law that prohibits most abortions after six weeks of pregnancy went into effect on Wednesday. The U.S. Supreme Court did not act on a request to block the law. (Drew Angerer/Getty Images)

Justice Amy Coney Barrett, in a speech at the Mitch McConnell Center at the University of Louisville, insisted that the Supreme Court “is not comprised of a bunch of partisan hacks.” Justice Stephen Breyer agreed. Justices are not politicians, he said, they simply have different judicial philosophies.

How the Supreme Court handled the new Texas ban on abortions after six weeks of pregnancy paints a far, far different picture. Indeed, when the Supreme Court acts in a way that no legal expert could have predicted, according to no rules that can be identified in advance, much less applied in the next case, it ceases to work as a court at all, no matter how it is characterized.

It has taken me a while to write about what the Supreme Court did late last month in dealing with the new Texas ban abortion ban. I couldn’t decide whether I was writing as a woman, who had applauded Roe v. Wade for what it did for women’s equality. If you can’t control whether and when to be a mother, all the anti-discrimination employment protections were useless.

Or, was I writing this as a former advocate, who along with my husband, John Reinstein, the legal director of the Massachusetts ACLU, successfully litigated abortion cases for decades before I became a judge.

Or, did I want to write this as a retired judge and current law professor who cared deeply about the rule of law.

Let me talk about the rule of law, which we should all care deeply about no matter where we stand on abortion. What the appeals court and Supreme Court did in allowing the Texas law to go into effect and delegating enforcement to private citizens — was simply lawless.

A woman carries a sign declaring abortion a part of healthcare at a rally at the Texas State Capitol on September 11, 2021 in Austin, Texas. Texas Lawmakers recently passed several pieces of conservative legislation, including SB8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, usually between the fifth and sixth weeks of pregnancy. (Jordan Vonderhaar/Getty Images)
A woman carries a sign declaring abortion a part of healthcare at a rally at the Texas State Capitol on September 11, 2021 in Austin, Texas. Texas Lawmakers recently passed several pieces of conservative legislation, including SB8, which prohibits abortions in Texas after a fetal heartbeat is detected on an ultrasound, usually between the fifth and sixth weeks of pregnancy. (Jordan Vonderhaar/Getty Images)

It had nothing to do with the debate about abortion that has roiled this country for decades.

It had nothing to do with concerns about fetal viability; six weeks is long before fetal viability. (In fact, young women take notice; birth control bans are next.)

It had nothing to do with women’s health, the women for whom pregnancy posed an imminent risk — like those with heart disease, or those who are undergoing chemotherapy.

It had nothing to do with justice; there was no exception in this law for rape or incest.

Nor did it have anything to do with the Constitution, let alone a respect for precedent.

In fact, it had nothing to do with law at all. It was about power, a message delivered anonymously by five justices, literally, at midnight, without full briefing or oral argument. We did it, the five-member majority of the court was saying, because we can. We are, after all, the Supreme Court.

Even if there were procedural complexities in this case ... they were supposed to be balanced against real harm to women in Texas, against the clear unconstitutionality of the law.

Five decades ago, plaintiff Roe challenged the constitutionality of the Texas criminal abortion law, suing Henry Wade, the District Attorney of Dallas County, who was responsible for the law’s enforcement. She brought the case in federal court, because the right to choose whether or when to be a mother had to be part of the package of rights guaranteed by the federal Constitution.

While Roe didn’t end the debate, as legislators in some states have been relentless in their efforts to curb the right Roe announced, one thing was clear. Courts treated each case challenging Roe as legal emergencies, restraining the law’s implementation to enable full briefing, making sure that the court proceedings were expedited, where possible. Most judges understood that time was of the essence; forcing a woman to continue with a pregnancy had a serious impact on her health and her life.

The Texas law sought to change all of that. It was intended to take the issues out of the federal courts entirely, to state courts and elected judges. It was intended to force pro-choice advocates to wait until a private citizen was sued for getting an abortion or aiding and abetting someone who did. By then, the mere threat of these cases would shut down the abortion clinics in Texas, and chill women from getting the health care they needed.

The district court judge refused to dismiss the case. He set up an expedited hearing for the day before the law was to be implemented, the usual procedure, indeed, the responsible one. The defendants appealed immediately. Rather than staying the application of the new law, as countless judges had done before, the Fifth Circuit did the opposite. It stayed the district court proceedings, not the law. Worse, it refused to expedite its own consideration of the issue. It was content to sit by and let the law wreak havoc on abortion access in Texas.

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Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. (Erin Schaff/AFP via Getty Images)
Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021. (Erin Schaff/AFP via Getty Images)

Samuel Alito, the justice in charge of the judicial circuit that included Texas, was fine with all of that.  Without a word, he refused to act, letting the law go into effect. Then, in a one-paragraph decision, four other justices agreed. The harm to women, to the 50 year old constitutional right to choose, somehow paled before the procedural complexity of this case, they said, in a decision about as coherent as Bush v. Gore.

That the law is blatantly unconstitutional is clear. While the Supreme Court can reconsider precedent, it is rare and troubling when it does — especially without careful briefing and argument. All the pablum that Justices Neil Gorsuch, Brett Kavanaugh and Coney Barrett spewed about respecting precedent during their confirmation hearings, pale before their unholy desire to affect this result.

Even if there were procedural complexities in this case, and in my judgment, they were minor, they were supposed to be balanced against real harm to women in Texas, against the clear unconstitutionality of the law. To Justice Alito and the four others who went along with him, none of this mattered. No, this isn’t about abortion, or the constitution, or even law; it is about power.

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Nancy Gertner Cognoscenti contributor
Judge Nancy Gertner was appointed to the bench in 1994 by President Bill Clinton, and retired in September of 2011 to join the faculty of Harvard Law School. Her autobiography, "In Defense of Women: Memoirs of an Unrepentant Advocate," was published in 2011.

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