The Corrupt ‘Texas Pipeline’ of Republican Judges and SCOTUS Allow The Back Door Repeal of A Woman’s Constitutional Right To An Abortion

The “Grim Reaper of Democracy,” Mitch McConnell’s decade long corrupt effort to pack the federal courts with right-wing political activist judges to protect GQP minority rule, has come to full fruition.

I have previously explained the corrupt “Texas Pipeline” of politically motivated lawsuits. Republicans have packed the federal courts in Texas with right-wing political activist judges, which the indicted and under FBI investigation corrupt Texas Attorney General Ken Paxton uses to “forum shop” for a judge who will merely rubber stamp his politically motivated lawsuit.

The Fifth Circuit Court of Appeals, which covers Texas, has also been packed with right-wing political activist judges by Republicans. The Fifth Circuit typically rubber stamps whatever the forum shopped Texas trial judge rules in favor of the Texas Attorney General. Next stop. the U.S. Supreme Court.

A Classic example of this is the lawsuit to overturn the Affordable Care Act in its entirety based upon the specious argument of non-severability of the individual mandate, which a Republican Congress stripped out of the ACA, that legal experts on both sides of the aisle dismissed as utterly ridiculous. And yet the corrupt “Texas Pipeline” Republican judges approved it. (The U.S. Supreme Court narrowly rejected this theory).

As the Washington Post’s Ruth Marcus writes today, The Fifth Circuit is staking outa claim to be America’s most danerous court. Um, sorry Ruth, but this is not new, it has been true for years. And it ignores the broader corruption issue of the “Texas Pipeline.”

The “Grim Reaper of Democracy,” Mitch McConnell, corruptly packed the U.S. Supreme Court with right-wing political activist judges, first by unconstitutionally blocking President Obama’s nomination of Merrick Garland to the Court under the bullshit “McConnell Rule” (no appointments during an election  year) after the death of Justice Antonin Scalia, and then four years later said “eh, never mind” after the death of Justice Ruth Bader Ginsberg only weeks before election. The actual McConnell Rule is that “I can do whatever the hell I want when I am in control.”

Sandwiched in between was the contemptible Brett Kavanagh, whom the Trump Justice Department under the direction of the most corrupt Attorney General in American history, William Barr, failed to properly vet. FBI ignored tips on Brett Kavanaugh, Senate Democrats charge: “Newly released materials show the FBI failed to fully investigate sexual misconduct allegations against U.S. Supreme Court Justice Brett Kavanaugh when he was nominated to the court in 2018.”

This Republican packed U.S. Supreme Court has taken to abusing emergency orders under the so-called “shadow docket” in recent years to make politically motivated decisions without oral argument or deliberation. Reuters reports, Analysis: Biden’s Supreme Court losses prompt more ‘shadow docket’ scrutiny:

President Joe Biden’s administration was dealt a double blow by the conservative-majority Supreme Court [last] week, raising new questions about how the justices handle cases brought via an emergency process known as the “shadow docket.”

The court in recent years has increasingly made substantive decisions on major issues via the shadow docket, deciding quickly and sometimes late at night in a process that critics from across the ideological spectrum say lacks transparency.

The administration of Biden’s Republican predecessor, President Donald Trump, did very well with the process, winning a wide majority of the cases it brought via emergency applications. (Trump won 28 of the 41 cases his administration brought via the shadow docket, which his administration turned to at a much higher rate than those of both Republican President George Bush and Democratic President Barack Obama. Biden is 0 for 2).

[Last] week’s decisions have raised questions as to whether a Democratic president receives the same friendly reception from a court with a 6-3 conservative majority.

“What we are seeing are the consequences of a deeply conservative court, with the added travesties of the shadow docket,” said Elizabeth Wydra, president of the Constitutional Accountability Center, a liberal nonprofit based in Washington.

The court in a decision on Thursday night ended the pandemic-related federal moratorium on residential evictions imposed by Biden’s administration.

That came two days after a Tuesday evening decision denying Biden’s bid to rescind an immigration policy implemented by Trump that forced thousands of asylum seekers to stay in Mexico awaiting U.S. hearings.

That decision requires the government to revive Trump’s “remain in Mexico” policy, formally known as the Migrant Protection Protocols (MPP) program.

In both cases the three liberals on the court dissented.

[L]ast month, a Reuters analysis of emergency applications over the previous 12 months showed how certain litigants – most notably the Trump administration and religious entities – fared better than others.

Which brings me to the latest travesty of justice from the corrupt “Texas Pipeline.”

Texas passed an anti-abortion law earlier this year which authorizes a private civil cause of action by anti-abortion zealots – think Operation Rescue and anti-abortion domestic terrorism, i.e., murdered abortion doctors and bombed abortion clinics – to sue abortion providers, anyone assisting the patient (including her husband, or family member, or a friend), and anyone who paid for the abortion, for statutory damages and an award of attorneys fees and costs, for any abortion occurring after the first 6 weeks of pregnancy. (Patients themselves are exempted from suit).

Texas effectively empowered anti-abortion vigilantes to engage in state-sanctioned harassment of abortion patients, their families, and abortion providers. The law is facially unconstitutional.

Roe v. Wade and its progeny hold that women have a constitutional right to an abortion within the first 24 weeks of pregnancy. Most women do not know that they are pregnant at 6 weeks, and most abortions do not occur in the first 6 weeks (which is why Texas chose this arbitrary deadline as a litigation trap). Some random Dude anti-abortion zealot cannot prevent a woman from exercising her constitutional rights, anymore than the Republic of Texas Gilead.

Supreme Court reporters Dahlia Lithwick and Mark Joseph Stern explain:

In July, a coalition of advocates representing abortion providers—led by the Center for Reproductive Rights, the ACLU, and Planned Parenthood—asked a federal district court to block the law from taking effect. SB 8’s convoluted structure prevented them from suing the usual state officials—such as the State Health Services commissioner, who would ordinarily implement a typical abortion restriction. Instead, they sued a group of county clerks and state judges who would enforce SB 8 if it does take effect. A federal district judge was poised to hold a hearing last week that might have paved the way for an injunction blocking the law.

On Friday, the Fifth U.S. Circuit Court of Appeals took the extreme and unusual step of abruptly cancelling a trial judge’s hearing on SB 8’s constitutionality, effectively allowing the law to take effect in two days, on Sept. 1. This aggressive intervention forced abortion providers to do what seems almost unthinkable: Ask the U.S. Supreme Court—the same court that agreed to hear a direct challenge to Roe v Wade only a few months back—for an injunction in an emergency filing on Monday. Their plea raises the inevitably bleak question: Will the conservative justices who control a 6–3 majority of the Supreme Court let Texas overturn Roe v. Wade before they have a chance to themselves?

SB 8 was designed as an Escher staircase for litigators. Its sponsors’ chief goal was to evade review by federal courts otherwise obligated to enforce Roe. Typically, when a state restricts abortion, providers file a lawsuit in federal court against the state officials responsible for enforcing the new law. Here, however, there are no such officials: The law is enforced by individual anti-abortion activists. There’s no specific defendant to enjoin from enforcing the law. The state ensured that even as it runs afoul of current precedent—under Roe, states may not ban abortion before fetal viability, at about 22 to 24 weeks—this version of the six-week ban survives. Texas argues that “abettors” can challenge the law once it’s enforced against them. But SB 8 locks all litigation in state courts that are now obliged to ignore Roe. So the Supreme Court cannot punt now then step in as soon as someone files suit under SB 8. If the justices want to keep abortion legal in Texas, they must act before Sept. 1.

This eleventh-hour crisis left abortion providers with one last option: ask SCOTUS for help. On Monday afternoon, with the clock ticking, the plaintiffs sought emergency relief from the Supreme Court. They asked the justices to issue either an injunction against SB 8—or, at a minimum, to lift the 5^th Circuit’s bizarre order preventing the district court from issuing its own injunction. Their application puts the stakes squarely before the court: Texas, aided by partisans on the 5^th Circuit, are trying to reverse Roe before the Supreme Court overturns it. Will the conservative supermajority, which has already agreed to hear a case nullifying Roe, allow Texas to get away with doing it first?

[If] the six conservative justices were seeking to avoid writing an opinion announcing that states can ban abortion once again, this case hands them a sterling opportunity: They can allow states to ban abortion without writing an opinion at all.

If SCOTUS does allow SB 8 to take effect, it will be open season on Texas’ abortion providers.

The craven coward Republican Justices have done just this. By failing to enjoin the Texas law last night, the U.S. Supreme Court effectively endorsed Texas empowering anti-abortion vigilantes to engage in state-sanctioned harassment of abortion patients, their families and friends, and abortion providers, and nullifying a woman’s constitutional right to an abortion in the first 24 weeks of pregnancy. The “Handmaid’s Tale” is now a dystopian reality.

The Washington Post reports, Texas ban on most abortions after six weeks takes effect after Supreme Court doesn’t act to block it:

A Texas law that bans most abortions after six weeks of pregnancy went into effect Wednesday, as a midnight deadline for the Supreme Court to stop it came and went without action.

[F]or now abortion providers in Texas, including Planned Parenthood and Whole Woman’s Health, said they will no longer terminate pregnancies more than six weeks from a woman’s last period.

Providers said the law effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, and that states may not impose undue burdens on that decision.

A Texas state court has issued a temporary injunction in a test case. Judge grants temporary injunctions against anti-abortion group ahead of ‘heartbeat bill’ enactment:

A Travis County judge on Tuesday blocked a major anti-abortion group from being able to sue several parties for abetting in the abortion process under a new Texas law set to go into effect Wednesday.

The orders were granted the day before legislation goes into effect that would restrict abortion after a fetal heartbeat is detectable — about six weeks into a pregnancy. That legislation, Senate Bill 8, does not carry criminal penalties but is enforceable through civil litigation filed on behalf of private citizen vigilantes.

Travis County District Judge Amy Clark Meachum specified that the orders do not stop SB 8 from going into effect on Wednesday and only prevent Texas Right to Life and several of its affiliates from suing named plaintiffs: Dallas attorney Michelle Simpson Tuegel, Allison Van Stean and abortion fund The Bridge Collective.

Attorney Elizabeth Myers, who represents those plaintiffs, said the orders granted by Meachum wouldn’t stop Texas Right to Life or other injunctive defendants from suing other parties that abet in abortions when the law goes into effect. TROs were granted for three of the five SB 8-related lawsuits Myers brought on Tuesday morning.

Texas Right to Life has publicly announced a concerted effort to collect reports of people who abet in abortions through a reporting page on its website and has said it would lead the charge in litigation after the law goes into effect. [This will lead to harassment and death threats, and even murders, just as Operation Rescue’s list of abortion providers did.] During the hearing on Tuesday, an attorney representing the group argued against the temporary injunctions on the basis that Texas Right to Life has not specifically threatened to bring forward legal action against the named plaintiffs.

“The plaintiffs in all three cases face imminent irreparable harm from these defendants,” Meachum said, justifying her decision to grant the temporary injunctions. A hearing about the orders is set for Tuesday, Sept. 14.

“(The state district court’s) ruling does not impact any other citizen’s ability to sue for violations of the Texas Heartbeat Act,” Texas Right to Life said in a statement released after the injunction was granted.

Note: One little-mentioned provision of SB 8 also triggers the mandatory closure of abortion clinics in Texas. When a plaintiff wins a suit against an abortion provider, they get more than just monetary damages: The state court is legally obligated to shutter the provider, as well. [This would be a state actor.] Thus, if when SB 8 takes effect, it will not take long for state courts to end all legal abortion services in Texas.

The cowardly act of the Republican Justices of the U.S. Supreme Court to allow a back door repeal of Roe v. Wade and the nullifiction of a woman’s constitutional right to abortion should spur a new round of demands for judicial reforms, including expanding the U.S. Supreme Court. Unfortunately, Aaron Belkin explains that the Biden commission on Supreme Court isn’t moving fast enough — or thinking big enough:

The GOP stranglehold on the Supreme Court is so thorough that two-thirds of all Americans weren’t even born yet the last time a majority of the justices had been appointed by Democratic presidents. And the court’s current 6-3 Republican majority, coupled with the Republican Party’s stated intent to block Democratic presidents from filling any vacancies that arise, means that absent reform, Republicans are likely to continue to enjoy a majority on the court for decades to come. An undemocratic majority put in place via minority rule has behaved as we should expect. As Demand Justice co-founder Chris Kang recently told the Commission: “The court’s most consistent victim is democracy itself.”

Unfortunately, you wouldn’t have any reason to believe we are living through a massive crisis of our democracy, based on how little urgency or action we’re seeing from Biden’s Supreme Court commission. In the roughly four months since its first organizational meeting in May (which lasted only 20 minutes), the commission has met just two other times, listening to panels of elite legal scholars and academics. Nowhere in this process have the voices of everyday Americans — the people with the most at stake — been elevated. The commission has one final meeting on the calendar for November and has already said it won’t be producing any recommendations.

With all due respect to the members of this commission, all of whom have other obligations, and to members of Congress, all of whom are grappling with many complicated issues: We do not have time to waste, and we need not spend any more of it on an apathetic academic exercise.

If we want our democracy to survive, this commission needs to move faster — and think bigger. Recommending immediate expansion of the Supreme Court by at least four seats is the only reform that meets the urgency of the moment. No other proposal would immediately wrest control of the Supreme Court from the extremist political minority that is using it to assail our democracy and impose minority rule.

There are a number of actions that would help reinforce the court’s independence and integrity, including a code of ethics for justices and term limits. But because of the political realities of our present court, it’s obvious that expansion is a necessary precursor to other reforms. Without expanding the Court immediately, other reforms may be struck down by the current court or take too long to have a meaningful impact on its composition and reduce the threats to our democracy we face today.

The same is true of a host of other urgently-needed policy reforms before Congress that would strengthen our democracy: All are vulnerable to a Supreme Court that has been captured by a political party committed to establishing minority rule. Should Congress enact laws to restore democracy — by enfranchising U.S. citizens in its territories and the District of Columbia, explicitly combatting the voter suppression laws cropping up across many conservative and battleground states, or altering the campaign finance laws that allow dark money to flood politics — the entrenched conservative justices can be expected to strike down any legislation that would threaten the Republican stranglehold on the country.

The Republican Party is actively trying to destroy American democracy and entrench itself as a permanent governing minority party, and the Supreme Court’s right-wing majority is an active and enthusiastic participant in this effort. By ignoring this reality, the commission won’t make it go away.

We are at a critical moment as we approach the end of this Commission’s timeline. There exists a narrow window to act to expand the court. With a president and majorities in both chambers of Congress that are at least nominally supportive of democracy, there’s a chance our democracy can be saved and strengthened. But that window may soon close. Republicans need to win control of just one chamber of Congress next year in order to thwart any effort to strengthen democracy. And if this governing window closes without expanding the court, the opportunity may never arise again. Like it or not, those who value democracy are in a race against those who are trying to dismantle it.

We can do big things, but the question is whether, like the Framers, we are willing to do them. If we aren’t, our fellow Americans will have to live with the consequences for generations to come.