Chief Justice John Roberts Has Lost Control Of His Court To The Trump Far-Right Radicals

All day on Wednesday, court observers were asking “why is the court silent?” on the Texas abortion law that the court allowed to go into effect that morning by remaining silent. This was a 6 week abortion ban that the court had routinely enjoined as an unconstitutional deprivation of a woman’s reproductive rights to an abortion under Roe v. Wade and Planed Parenthood v. Casey.

Many court observers speculated that “there must be something else going on here.” That speculation has now been answered. Chief Justice John Roberts has lost control of the Supreme Court to the three Trump far-right radicals appointed to the court, who joined forces with the existing far-right radical bomb throwers Samuel Alito and Clarence Thomas.

Consider this a successful coup d’etat at the Supreme Court by white Christian nationalists, as dangerous to the future of American democracy as the violent MAGA/QAnon seditious insurrection on January 6 (also by white Christian nationalists). And it was accomplished with the full support of the GQP establishment (and voters) and every GQP senator in the U.S. Senate, in particular, the “Grim Reaper of Democracy,” Mitch MConnell, the mastermind behind this coup d’etat (Donald Trump will want to claim credit, but he was a bit player in this decades-long plot).

Note: Before any of you say “but wait, isn’t Clarence Thomas black?,” he is married to a far-right radical activist white woman, Ginny Thomas, who supported the MAGA/QAnon seditious insurrection on January 6. Ginni Thomas, Wife of Clarence, Cheered On the Rally That Turned Into the Capitol Riot. The key words are far-right radical.

Amy Howe reports at SCOTUSblog, Supreme Court leaves Texas abortion ban in place:

Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.

The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.

Under the so-called McConnell Rule, no appointments to the Supreme Court can be made during an election year.  Ruth Bader Ginsberg died only weeks before election day, and McConnell nevertheless rushed Amy Coney Barrett onto the Court. This was a stolen seat that should have been filled by the president elected in November, Joe Biden, surely as the seat vacated by the death of Ginsberg’s friend, Antonin Scalia, was a stolen seat that should have been filled by then-President Barack Obama.  This has been a slow-motion coup d’etat by Republicans.

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals [i.e., the “shadow docket.”]

The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, in which the Supreme Court held that the Constitution protects the right to have an abortion before a fetus can survive outside the womb. That benchmark, known as viability, occurs around 24 weeks of pregnancy, but S.B. 8 prohibits abortions after about six weeks of pregnancy – a time measured from the first day of the woman’s last menstrual period and before many people realize that they are pregnant. To make it harder to challenge the law in court, particularly before it went into effect, the Texas law does not rely on government officials to enforce the ban. Instead, it deputizes private individuals [vigilantes] to bring lawsuits against anyone who either provides or “aids or abets” an abortion, and it establishes an award [bounty] of $10,000 for a successful lawsuit.

Texas abortion providers went to federal court in July, seeking to block it before its Sept. 1 effective date. They argued (among other things) that the law violates their patients’ constitutional right to end a pregnancy before viability. When the district court denied the defendants’ motion to dismiss the case on Aug. 25, things moved quickly. The defendants went to the U.S. Court of Appeals for the 5th Circuit, which granted their request to put the remaining district-court proceedings, including an Aug. 30 hearing on the abortion providers’ request for a preliminary injunction, on hold. The court of appeals also denied the abortion providers’ request to fast-track the defendants’ appeal, prompting the providers to seek emergency relief in the Supreme Court on Monday afternoon.

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

Note: As a preliminary matter, all civil cases require standing (the requirement that the plaintiff has sustained or will sustain a direct injury or harm, and that this harm is redressable by the court), and that there is a justiciable controversy, i.e., an actual case and controversy (an actual dispute between parties over their legal rights that remain in conflict at the time the case is presented and must be a proper matter for judicial determination).

S.B. 8 attempts to eliminate these preliminary requirements for a civil case. It has a 4 year statute of limitations (human pregnancy is nine months), and it allows any anti-abortion vigilante in the country to file a lawsuit in Texas (presenting a federal court jurisdiction issue) to recover a bounty and attorney fees and costs. If the defendant wins, the statute prohibits an award of attorneys fees and costs (even for a frivolous lawsuit and abuse of process). This is a violation of equal protection and due process.

Some random anti-abortion vigilante, from let’s say the state of Arizona, who sues everyone at an abortion clinic in Austin, Texas and the woman’s family members and friends who helped her pay for the abortion, clearly does not have standing  – in what way has this random anti-abortion vigilante from Arizona been directly injured by any of the defendants? – and some random anti-abortion vigilante from Arizona does not have any legal rights in dispute with individuals whom he or she does not know and has never even met, so there is no actual case or controversy. I would also argue that the four year statute of limitations indicates that this law is not meant to prevent an abortion – virtually all abortions occur in the first 24 weeks – but rather is a punitive measure designed to inflict financial harm.

This obscene law is effectively the Republic of Texas Gilead deputizing anti-abortion vigilantes to engage in bounty hunting and statutorily rewarding them a bounty (there’s your state action), while holding them harmless for vexatious litigation (frivolous lawsuit and abuse of process), a violation of equal protection and due process.

Something about this sounds vaguely familiar. Oh yeah, the Fugitive Slave Acts of 1793 and 1850. This is from where Texas draws its inspiration?

Something else about this sounds vaguely familiar. Oh yeah, the Soviet Union and communist cells, i.e, the neighbor/government informer living next door. Kremlin counts on informers to keep Soviet society in line.

In his dissent, which was joined by Breyer and Kagan, Chief Justice Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Texas case will now return to the lower courts, where litigation will continue. Meanwhile, the justices have already agreed to weigh in on a challenge to the constitutionality of a Mississippi law that would ban most abortions after the 15th week of pregnancy; they are likely to hear oral argument in that case in December, with a decision to follow sometime next year. In that case, Mississippi and its supporters have urged the court to formally overturn Roe and Casey.

Supreme Court reporter Mark Joseph Stern adds, The Supreme Court Overturned Roe v. Wade in the Most Cowardly Manner Imaginable (excerpt):

At midnight on Wednesday, in an unsigned, 5–4 decision, the Supreme Court effectively overturned Roe v. Wade. The five most conservative Republican-appointed justices refused to block Texas’ abortion ban, which allows anyone to sue any individual who “aids or abets” an abortion after six weeks, when the vast majority occur. There is no exception for rape or incest. The decision renders almost all abortions in Texas illegal for the first time since 1973. Although the majority did not say these words exactly, the upshot of Wednesday’s decision is undeniable: The Supreme Court has abandoned the constitutional right to abortion. Roe is no longer good law.

Texas’ ban, known as SB 8, constitutes a uniquely insidious workaround to Roe. It outlaws abortion after six weeks, but does not call on state officials to enforce its restrictions.

Instead, as Justice Sonia Sotomayor wrote in dissent, the law “deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Random strangers can sue any “abettor” to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front-desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.

Texas Republicans devised this convoluted scheme to avoid judicial review of their ban, which blatantly violates binding Supreme Court precedent protecting the right to abortion before viability (around 23 weeks). And, in Sotomayor’s words, the ultra-conservative majority’s decision to let the law stand anyway “rewards” these “tactics.”

Now that Chief Justice John Roberts has lost control of his court to the three Trump far-right radicals appointed to the court, and the existing far-right radical bomb throwers Samuel Alito and Clarence Thomas, it begs the question “who is the leader of this coup d’etat?” Deference to seniority still runs deep at the Supreme Court, so the obvious answer is that the most senior member of this cabal, Clarence Thomas (backed by his pro-insurrection wife Ginny Thomas) is the ring leader, with the possible exception that far-right bomb thrower Samuel Alito is the ring leader. This is the question to which Supreme Court reporters need to learn the answer, and quickly.