U.S. Supreme Court Undermines Its Own Rules

Rally outside the U.S. Supreme Court, October 2, 2021

On September 1, the same day the Texas law banning any abortions after six weeks came into effect, the Supreme Court ruled 5-4 that it would not act to block the law. It did not rule as to whether the law is Constitutional, which is now being litigated in the lower courts. Many lawsuits have been filed against the Texas law, but this one was brought by President Biden and the U.S. Justice Department. Biden's action is an indication that, while commonly the Supreme Court acts as an arm of the Executive, defending its powers, the conflict among the ruling circles and dysfunction of existing institutions is such that the Court at times is also acting in favour of ruling factions not in power. It also shows the increasing conflict between state and federal government.

The decision by the Supreme Court was done through what is known as its "shadow docket." This is the practice of undermining its own rules. In this case it meant deciding important issues in a rushed decision without full briefing or oral argument, including guidance from lower court rulings, that had not yet occurred. As Justice Elena Kagan, in dissenting put it, "Today's ruling illustrates just how far the court's 'shadow-docket' decisions may depart from the usual principles of appellate process." She added such a ruling "is of great consequence." She said the decision was taken hastily and only with the "most cursory" review of the submissions by the parties involved. The conclusion not to act on an "obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme," was not explained or justified by the majority ruling. She concluded, "In all these ways the majority's decision is emblematic of too much of this court's shadow-docket decision making -- which every day becomes more unreasoned, inconsistent and impossible to defend."

Clearly the justices themselves are concerned that the Court is undermining its own rules and setting precedent to make such "cursory" and "unreasoned" decisions the norm. Many people already consider that the Court has become so politicized that, like Congress and the Presidency, it has lost credibility in the eyes of the public. It is not a defender of rule of law but of undermining it, including undermining its own rules and norms.

Additional comments by the dissenting justices further confirm this. Justice Sonia Sotomayor wrote in her dissent, "Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand." She said, "The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law."

Chief Justice Roberts wrote that he would have blocked the law while appeals moved forward. He said the Texas "legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime."

The Texas law is designed to inflame passions and pit people against each other while letting the state off the hook. The law bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or "aids and abets" it. The patient may not be sued, but doctors, staff members at clinics, counselors, people or organizations who help pay for the procedure, and even the driver taking a patient to an abortion clinic can all be sued. Individuals bringing such lawsuits do not need to live in Texas, or have any connection to the abortion or show any injury from it. In this way the state has no responsibility and those instigating the lawsuits have a free hand to more broadly and arbitrarily attack women and health care workers.

On October 6, a federal judge ruled that the Texas law (S.B. 8) was unconstitutional and blocked state court judges and court clerks from accepting any lawsuits stemming from it. Judge Pitman also ordered the state to publish his order on all "public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts." He ruled the state and "any other persons or entities acting on its behalf" were blocked from enforcing the statute, saying "this Court will not sanction one more day of this offensive deprivation of such an important right."

Texas immediately appealed to the 5th Circuit Court of Appeals, known for its reactionary rulings. As the many demonstrating and fighting state and federal attacks on the right to health care bring out, the fight for rights will carry on and is far from over. What is also coming to the fore is that existing Supreme Court rulings and its own norms and rules are being undermined. There is not a rule of law or a rules-based order when rules and laws are so readily violated.

This article was published in

Volume 51 Number 10 - October 10, 2021

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