Gordon L. Weil
The U.S. Supreme Court just sent a strong signal that it could soon change its collective mind and rule that a woman has no constitutionally protected right to have an abortion.
By taking no action on an appeal to suspend a new Texas law, it took a giant step toward acting as the national legislature. It took charge, because of a vacuum left by Congress. Forget about three equal branches of government and their checks and balances.
The Court allowed into effect a Texas law that limits access to abortions to the point of eliminating it. Texas tried to dodge responsibility for its own law by only allowing private parties to enforce its extreme terms.
Congress has passed no abortion rights law, leaving the Supreme Court to create such rights. That makes it the federal lawmaker, despite claims by justices that they only apply the law but do not make it.
All nine justices recognized that Texas wants to outlaw abortions. What the Court has legislated as a right, it looks about ready to repeal.
Justices understood that, by allowing the law to go into effect, abortions in Texas would stop. Providers lack the resources to withstand a possible flood of cases, even if many have no factual basis. The law raises major political and constitutional issues.
The five-member majority quietly let the law go into effect, leaving abortion providers to find some way to bring an acceptable legal action against it. It is possible, they noted, that a Court decision more than a century ago could block it from second-guessing state courts.
Chief Justice John Roberts wrote that the law should be suspended until the federal court system ruled on it using normal legal filings and hearing procedures.
Roberts was supported by the three justices considered to be liberals. But they also noted that, in their view, the Texas law violated the Court’s own earlier decisions allowing abortions.
The Court long ago adopted the principle that it would usually stick to earlier constitutional decisions on which people relied. Sen. Susan Collins said that, before voting to confirm Brett Kavanaugh as a justice, he agreed that abortion rights were such “settled law.”
The Court chose one earlier decision, limiting its ability to overturn a state’s action, over another, a woman’s right to an abortion in the first three months of pregnancy with no state allowed to stop it. Before ruling on the constitutional conflict between its decisions, it effectively decided – for the state.
Its refusal on procedural grounds to delay the Texas law permitted a result that it had previously found illegal. That way of thinking could ripple across the states on other issues, and that’s why Roberts wanted first to follow usual judicial procedures.
Whatever the effect of the Court’s failure to act, it deployed a method it increasingly uses to avoid taking clear responsibility. It has reduced the number of its formal decisions, substituting the so-called “shadow docket” to make major rulings. Under it, without hearings or legal briefs, key decisions are hidden by making them seem only procedural.
The Trump administration sought such quick action 41 times in four years and won 28 times. In the 16 years of the G.W. Bush and Obama administrations, it was used only eight times. It seems conservative justices prefer fast answers and little transparency.
The Democrats may have worried about losing a vote to establish a federal right to an abortion, which would put the Roe v. Wade decision into law. But public opinion now seems to encourage such a bill, and House Speaker Nancy Pelosi says one will be offered.
While such a bill might pass in the House, its success in the Senate is less likely. Still, the Democrats see the Court’s shadowy feint at repeal of Roe v. Wade as a winning political cause for them.
Congress has the constitutional authority to shape the Supreme Court’s powers. It could control the use of the shadow docket and even limit the Court’s ability to determine if laws are constitutional. That power is itself derived from a Court decision in 1803, not from the Constitution.
President Biden has created a commission to look into the Supreme Court. Should the Court be enlarged to reduce conservative control? Court packing is not politically popular, but there’s a way to appoint temporary federal judges. They could redress the political balance and then gradually be phased out as vacancies occur.
Whatever comes from the Texas matter, action to reverse the unelected Court’s growing legislative power seems overdue. For Congress to regain the elected branch’s control of legislation requires the Senate to end the filibuster so that both houses can make decisions by majority vote.
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