Legal/scotus thread

After her husband was infected with the coronavirus and entered an intensive care unit this month, Angela Underwood pushed for the Louisville hospital that was treating him to administer ivermectin to her husband — the deworming drug some people have used to treat or prevent covid-19 in recent months.

She sued Norton Brownsboro Hospital after it allegedly refused to administer the treatment to Lonnie Underwood, 58, without a court order and supervision by a doctor with the authority to do so.

“As a Registered Nurse, I demand my husband be administered ivermectin whether by a Norton physician or another healthcare provider of my choosing including myself if necessary,” Angela Underwood wrote in the complaint filed last week, asking the court to designate the unproven treatment as “medically indicated.”

But a judge denied her emergency order request Wednesday in a scathing ruling that called out people who have promoted and supported ivermectin as an effective treatment for covid-19. Jefferson Circuit Judge Charles Cunningham, who said the court “cannot require a hospital to literally take orders from someone who does not routinely issue such orders,” noted in his ruling how the Kentucky Supreme Court “only allows admission of scientific evidence based on sufficient facts or data.”

“Unfortunately, the Internet has no such rule. It is rife with the ramblings of persons who spout ill-conceived conclusions if not out-right falsehoods,” Cunningham wrote in an order obtained by The Washington Post. “If Plaintiff wants to ask the Court to impose her definition of ‘medically indicated’ rather than the hospital’s, she needs to present the sworn testimony of solid witnesses, espousing solid opinions, based on solid data.”

https://www.washingtonpost.com/health/2021/09/16/kentucky-ivermectin-hospital-lawsuit-underwood/
 
https://www.nytimes.com/2021/10/04/opinion/supreme-court-conservatives.html

The Reagan revolution pitted itself against “activist” judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady — as articulated by John Roberts, the job of justices was “to call balls and strikes, and not to pitch or bat.”

-The idea that there isn't some form of instant replay available for the callers of balls and strikes has always amused me. It's utter nonsense especially when the new ruling is rolling back government power.

That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.

-Oh no! More rights? Too much freedom is anathema to my worldview!

In the highest-profile case of the court’s new term, Dobbs v. Jackson Women’s Health, the conservative justices may be ready to repeal the constitutional right to abortion.

At the same time it seems ready to cast aside certain constitutional rights, the court today regularly gives sweeping new interpretations to other rights and invokes them to radically narrow certain government powers that were until quite recently uncontroversial, including, for example, powers related to public safety or our democratic process.

It may be ready to do just that in an upcoming firearms case in which a lower court upheld, in a manner largely consistent with other recent decisions, a New York State law that requires evidence of good cause for a person to obtain a license to carry a gun outside of the home. In the 2008 Heller case, the Supreme Court acknowledged that the Second Amendment right to bear arms does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

-That's strange. When I read the Constitution I see a right to both keep and bear arms, but nothing about having an abortion.

Another potential blockbuster case — it is not yet officially on the docket — would consider a reversal of the court’s precedent approving affirmative consideration of race as a factor in college admissions.


-The idea of the Supreme Court declaring racist policies unconstitutional. So unprecedented.

My concerns about what the Supreme Court might do now are fed by its actions in the recent past. Last term was marked by a number of radical departures from precedent and existing law to elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks.

Perhaps most unexpected and disturbing were decisions elevating rights of religious assembly over local public-safety rules related to Covid-19 that limited the ability to gather. Yet throughout our history, in matters of public health, the powers of local government have usually been at their apex. That did not matter here — nor did the fact that Chief Justice Roberts was among the dissenters.

-They "elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks?" Seriously? Dude invents "constitutional" rights that aren't mentioned in the document, but rails against the Court protecting the freedoms of assembly and religion?

It's sad to see what the NYT has become. Publishing a Tom Cotton op-ed got an editor fired, but there won't be any complaints about this one's plea for less individual freedom.
 
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Jaw said:
https://www.nytimes.com/2021/10/04/opinion/supreme-court-conservatives.html

The Reagan revolution pitted itself against “activist” judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady — as articulated by John Roberts, the job of justices was “to call balls and strikes, and not to pitch or bat.”

-The idea that there isn't some form of instant replay available for the callers of balls and strikes has always amused me. It's utter nonsense especially when the new ruling is rolling back government power.

That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.

-Oh no! More rights? Too much freedom is anathema to my worldview!

In the highest-profile case of the court’s new term, Dobbs v. Jackson Women’s Health, the conservative justices may be ready to repeal the constitutional right to abortion.

At the same time it seems ready to cast aside certain constitutional rights, the court today regularly gives sweeping new interpretations to other rights and invokes them to radically narrow certain government powers that were until quite recently uncontroversial, including, for example, powers related to public safety or our democratic process.

It may be ready to do just that in an upcoming firearms case in which a lower court upheld, in a manner largely consistent with other recent decisions, a New York State law that requires evidence of good cause for a person to obtain a license to carry a gun outside of the home. In the 2008 Heller case, the Supreme Court acknowledged that the Second Amendment right to bear arms does not allow a person to “keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

-That's strange. When I read the Constitution I see a right to both keep and bear arms, but nothing about having an abortion.

Another potential blockbuster case — it is not yet officially on the docket — would consider a reversal of the court’s precedent approving affirmative consideration of race as a factor in college admissions.


-The idea of the Supreme Court declaring racist policies unconstitutional. So unprecedented.

My concerns about what the Supreme Court might do now are fed by its actions in the recent past. Last term was marked by a number of radical departures from precedent and existing law to elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks.

Perhaps most unexpected and disturbing were decisions elevating rights of religious assembly over local public-safety rules related to Covid-19 that limited the ability to gather. Yet throughout our history, in matters of public health, the powers of local government have usually been at their apex. That did not matter here — nor did the fact that Chief Justice Roberts was among the dissenters.

-They "elevate certain constitutional rights of individuals in a way that can stop government at all levels in its tracks?" Seriously? Dude invents "constitutional" rights that aren't mentioned in the document, but rails against the Court protecting the freedoms of assembly and religion?

It's sad to see what the NYT has become. Publishing a Tom Cotton op-ed got an editor fired, but there won't be any complaints about this one's plea for less individual freedom.
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It's ridiculous that thing got printed. People will generally slap the label of activist judge on any judge that disagrees with what that person thinks the law should be. This editorial is puerile whining that there might be judges that think the court has gotten things wrong in the past and think that should be corrected. When the court extended employment protections to gay and transgender workers by taking an expansive definition of the word "sex," I'd wager this individual was cheering them on and not complaining about activist judges departing from long established practices.

All I ask for is a little intellectual honesty. Don't try to accuse the other side of being activist judges and then deny your chosen side is doing the same thing.

Personally, I understand that two people can differ on what they think the law actually is. The law is words and lawyers are excellent at finding ambiguities in words. I've read the transgender employment rights case. I understand the reasoning and know that it really wasn't an activist stance. Gorsuch was actually working to try to apply some kind of logic to the application of the statute. I think he got lost in the weeds a little bit but it wasn't activist.

If the court curtails abortion rights, it wont be because they're activist. It will be because there's a fundamental difference of opinions about what rights are bestowed and when. It's a legitimate difference of opinion on what the law is. Both sides can maintain their positions without being activist.

If you want to look at truly activist cases, look at the first Obamacare case. Roberts opinion tortured the law to get to the conclusion he wanted (upholding Obamacare while curtailing Commerce Clause power). That decision isn't even a good faith interpretation of the law. It's a bald attempt to justify a conclusion (note, the law could have easily been upheld under the Commerce Clause but Roberts had to do mental acrobatics to not go that route).

Or you could look at the cop sassing case that came up recently. I still don't understand how the court reached the conclusion where cops can essentially arrest you for sassing them with impunity. That decision is one of the most baseless I've ever seen.

So lets be honest about using the term activist. It's not when the court disagrees with your idea of what the law should be, it's when the court has to torture the law to reach a conclusion they want.
 
The Fifth Circuit already declined to block this once, so SC here we come. In the meantime an estimated 100 abortions per day haven't been performed for 36 days, and providers are reluctant to resume due to a clause in the law that allows suit for any abortions performed during an injunction.

https://www.msn.com/en-us/news/poli...xas-abortion-law/ar-AAPdvt1?OCID=ansmsnnews11


A federal judge has blocked the new Texas law that uses the prospect of private lawsuits to enforce a ban on abortions after about six weeks of pregnancy.

Acting on a suit brought by the Biden administration, U.S. District Court Judge Robert Pitman issued a preliminary injunction on Wednesday evening that immediately forbids Texas state court judges and clerks to accept suits under the law, known as S.B. 8.

“Despite the State’s attempts to obscure the question … people seeking abortions face irreparable harm when they are unable to access abortions; these individuals are entitled to access to abortions under the U.S. Constitution; S.B. 8 prevents access to abortion; a preliminary injunction will allow — at least for some subset of affected individuals — abortions to proceed that otherwise would not have,” Pitman wrote in his 113-page ruling.
...
Within about an hour of Pitman releasing his decision, Texas filed a notice appealing the decision to the New Orleans-based 5th U.S. Circuit Court of Appeals, with the outcome of that appeal likely to wind up at the Supreme Court within weeks.
 
Too much is being made of the Texas abortion cases in front of the court right now. They're not about the validity of the actual law. It's all justiciability stuff at this point. Either way the court decides it wont be the end of this fight. It probably wont even indicate how the court will decide in the future. The decisions the court makes will be important but not really because of abortion.
 
striker42 said:
When the court extended employment protections to gay and transgender workers by taking an expansive definition of the word "sex," I'd wager this individual was cheering them on and not complaining about activist judges departing from long established practices.

All I ask for is a little intellectual honesty. Don't try to accuse the other side of being activist judges and then deny your chosen side is doing the same thing.
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This is an article from a Reagan Deputy SG, who held the post before Bill Barr. He clerked for Rehnquist. He works at Jones Day DC, one of the go to arch-conservative law firms in DC (Scalia, Sutton, Katsas, McGahn, etc. all out of there). You guys just have no perspective at all.

All I ask for is a little intellectual honesty. Don't try to accuse the other side of being activist judges and then deny your chosen side is doing the same thing.
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This is literally the entire pathos of the conservative legal movement. Libs = Activists, Conservatives = "Restoring" the constitution through originalism/strict constructionism/textualism/[insert whatever philosophy gets the right answer]. See, literally what Jaw posted above.

It doesn't surprise me that this guy, a founding FedSoc generation conservative, would be whining about "activist judges." That's the meat and potatoes stuff.
 
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Metaphysicist said:
This is an article from a Reagan Deputy SG, who held the post before Bill Barr. He clerked for Rehnquist. He works at Jones Day DC, one of the go to arch-conservative law firms in DC (Scalia, Sutton, Katsas, McGahn, etc. all out of there). You guys just have no perspective at all.



This is literally the entire pathos of the conservative legal movement. Libs = Activists, Conservatives = "Restoring" the constitution through originalism/strict constructionism/textualism/[insert whatever philosophy gets the right answer]. See, literally what Jaw posted above.

It doesn't surprise me that this guy, a founding FedSoc generation conservative, would be whining about "activist judges." That's the meat and potatoes stuff.
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That guy isn't as conservative as you want to make him out to be.

And my point was the term "activist judge" has become a term for any judge deciding a way the speaker doesn't like. Judges that make decision the person agrees with are judges deciding within the law. Judges that make decisions the person disagrees with are activist judges.

The problem is that a lot of people think the law is whatever they think it should be. They don't understand that sometimes the correct legal conclusion might yield a result they don't like.

For example, the Texas abortion case is likely to go against Texas. You'll hear conservatives screaming about activist judges and what not. Few people will take the time to sit down and realize that a valid and consistent interpretation of the law would yield to finding against Texas at this stage.
 
Metaphysicist said:
The irony, she is thick.
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I have a simple view on the Constitution and the Bill of Rights. Read what is in them with the spirit of the time they were written in, constraining the federal government, and emphasizing any rights the documents chose to emphasize.

That philosophy makes it easy for me stay consistent on things like abortion and capital punishment. The federal government is given power of neither in the Constitution, and the Declaration says that Life is a self evident, unalienable right. An argument can be reasonably made that states have the power to decide on abortion rights, but there is none that the federal government has any say. None.

Speech, regardless of how stupid or traitorous, is a guaranteed right. It makes it harder to clean up places like college campuses, but it's important to read that right as liberally as possible.

The Second was written when the majority of cannons in the country (and recently used in the American Revolution) were privately owned, and men often went to war with the weapons they provided themselves. Reasonable arguments can be made (and I would agree with them) that it should be amended, but not that "shall not be infringed" means anything other than what it says.

We could continue on down the line, but I expect it's already unproductive.
 
Erickson is occasionally insightful.

https://ewerickson.substack.com/p/abort-roe

Not only does Roe conjure things no one can fairly read into the Constitution, it imposes a morality on 350 million people demanding those people give a right to kill children that many of them abhor. Roe set off the culture war we have today all because seven lifetime appointees of the Supreme Court decided the morality of Harvard Yard could be imposed as a one size fits all morality for all of the varied fifty states. It remains a decision of ultimate pride that has seeded a culture of death in America.

Beyond that, the defenders of abortion rights now are left in the morally depraved state of using the arguments of nineteenth-century slavemasters to defend their right to kill. “It’s my property” has become “it’s my body.” “If you don’t want one, don’t have one” stays the same. “They aren’t even really human” stays the same. “They can’t survive off the plantation” becomes “they can’t survive outside the womb.” On and on the moral depravity goes.

Should Roe v. Wade end after tomorrow’s arguments in Dobbs v. Jackson Women's Health Organization before the Supreme Court, abortion will continue in the United States. Many states will keep it legal. Other states will find their own state supreme courts conjure an abortion right out of whole cloth. Many others will see pro-life Republicans finally reveal they were never really as pro-life as they claimed. But some states will actually protect the life of the unborn even as Hollywood and Fortune 500 companies announce their boycotts of those states and build pressure for the Cult of Death to keep advancing.

But abortion will not end. Ending Roe does not end the depravity. It does, however, put the policymaking in the legislatures of the several states where it should have been this whole time. Seven black-robed justices never had any business deciding such an issue. The Court should exercise humility and return the decision-making on abortion back to the states.

Ironically, as well, should Roe end, it would also end the last tie that binds together so much of the right as political realignment sweeps the country. In ending Roe, the Court would be upending the forty-year center of gravity of the conservative movement in Washington, D.C. at a time the conservative movement does not really even know what it stands for.

But it would all be worth it. (continued)
 
The right is making a huge mistake if they don't go all in on the culture wars moving forward.

Look at the speech of the potential new French president.

This is what the West needs to survive.
 
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Ginsburg had an interesting take on Roe v. Wade. She was a staunch abortion advocate but didn't like Roe v. Wade. She thought it shut down the debate and entrenched the camps where they were. Instead of more gradual change that included policy makers and encouraged public debate, it was a sharp command from above that created the zero sum game we're currently in. She thought the law in that case should have been struck down and the public discourse on abortion have been allowed to continue.

I think Roe is a great example of the risks of a court making a sweeping decision that changes too much too fast. I also think reversing it in an equally sweeping decision might cause some of the same problems.

It wouldn't surprise me to see the court change the analysis of Planned Parenthood v Casey (the current controlling case) but I think they'll stop short of just turning over abortions to the states to regulate. They have good cover as one of the accepted reasons not to adhere to stare decisis is a change in facts or there being new knowledge. Mississippi is arguing that we know a lot more about fetuses now than we did when Casey was decided and that the access to birth control has grown dramatically. The court could cite that as a reason to overturn Casey and set up a new standard.

I think we'll see a move towards abortion restrictions but the court hasn't had the appetite to make sweeping decisions in other cases and I don't see them doing it here.
 
striker42 said:
Ginsburg had an interesting take on Roe v. Wade. She was a staunch abortion advocate but didn't like Roe v. Wade. She thought it shut down the debate and entrenched the camps where they were. Instead of more gradual change that included policy makers and encouraged public debate, it was a sharp command from above that created the zero sum game we're currently in. She thought the law in that case should have been struck down and the public discourse on abortion have been allowed to continue.

I think Roe is a great example of the risks of a court making a sweeping decision that changes too much too fast. I also think reversing it in an equally sweeping decision might cause some of the same problems.

It wouldn't surprise me to see the court change the analysis of Planned Parenthood v Casey (the current controlling case) but I think they'll stop short of just turning over abortions to the states to regulate. They have good cover as one of the accepted reasons not to adhere to stare decisis is a change in facts or there being new knowledge. Mississippi is arguing that we know a lot more about fetuses now than we did when Casey was decided and that the access to birth control has grown dramatically. The court could cite that as a reason to overturn Casey and set up a new standard.

I think we'll see a move towards abortion restrictions but the court hasn't had the appetite to make sweeping decisions in other cases and I don't see them doing it here.
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Ginsburg said that, yet how did she vote on Obergefell?

I agree with you on the likely outcome of this case. I also think that the Court tossing out Roe is the only chance the Dems have for being competitive in 2022. On the surface that would be a worthwhile trade in my mind, but the next level effect could be that Dems retain control, toss the filibuster, pack the court, and throw out this case. What a silly place to find ourselves.
 
Jaw said:
Ginsburg said that, yet how did she vote on Obergefell?

I agree with you on the likely outcome of this case. I also think that the Court tossing out Roe is the only chance the Dems have for being competitive in 2022. On the surface that would be a worthwhile trade in my mind, but the next level effect could be that Dems retain control, toss the filibuster, pack the court, and throw out this case. What a silly place to find ourselves.
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Roberts will almost certainly be on the side of a narrow ruling. He's concerned with the image of the court and a massive ruling would have a lot of people against the court no matter how they do it.

The three liberals will do whatever they can to keep the needle moving as little as possible. So you have 4 that would likely be on the side of a more narrow ruling.

That means just one of Gorsuch, Kavanaugh, or Barrett has to be in favor of a more narrow ruling. I think one or perhaps two would be.

So I think it's going to be a smaller change.
 
https://www.scotusblog.com/2021/11/we-read-all-the-amicus-briefs-in-dobbs-so-you-dont-have-to/

Good breakdown of all the amicus briefs on the abortion case. Way too many policy arguments for my taste, especially on the pro-choice side. I loathe policy arguments in appeals like this. It's not the court's job to determine what is best for society. The court is supposed to determine what the law IS not what the law SHOULD be. But the reality is that court doesn't do that. They consider policy arguments and act like a super legislature far too often.

The court has a good out to keep the case narrow. The original question was whether all pre-viability bans are automatically unconstitutional. The court could carve out that there are exceptions where state interest has enough weight to justify it without tossing out Roe/Casey all together. That was the original question the court granted cert on so they could easily ignore all the arguments for wholesale changes.
 
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Listening to oral arguments in hyper political cases is incredibly frustrating. I've heard questions from Roberts, Kagan, Alito, Breyer, Sotomayor, and Thomas. It was clear that all of them but Roberts were making arguments for one side or the other. That is not how this should work, regardless of which side you're own.
 
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