Sure, but it has been nine for 150 years. Will you admit that you want to change 150 years of tradition to save one single (poorly decided) case?
It is not to save one poorly decided case. It is to save hundreds of cases that can happen over the next 30 years (since these justices can expect to be there that long…give or take a few years). They are already showing alarmingly bad judgement. Why would we want 30 more years of it?
Cite to an “alarmingly” bad judgment. You’ve seen me on here bitching about cases, but I don’t think there is one close to being “alarmingly” bad.
Texas law under discussion.
I thought that might be where you were going, but in the other thread, I was talking about it, and the judgment was just right. I hate it. I would have stayed up days researching and finding a way to rule against this law. But that’s not what a judge should do. A judge should apply the law, and five of them did it. I don’t consider following the law to be alarming.
The SCOTUS is NOT a rubber stamp for legislatures.
They are a co-equal branch of government. They are not beholden to “the law” as the Texas legislature writes it/deems it to be so. They are the final arbiter of the law and they failed here.
More, this was only asking to enjoin the law until it could be settled.
If ever there was a law where it was unclear how it would pan out this is it.
We discussed this upthread. You don’t enjoin a law. You enjoin a person. And there was nobody to tell to stop doing something. It was a clever move.
I’m not so sure:
The abortion providers wanted an injunction binding all the Texas judges who would have enforced the law. The district court observed that such an injunction was the only effective remedy. But the Supreme Court responded that “it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.”
There are two ways of reading that sentence. One is that, as a matter of law, laws of this kind can never be challenged before they are enforced, because it is always possible – vanishingly unlikely, but possible – that nobody will respond to these handsome financial incentives. If that is the law, however, then the courts cannot enjoin any law of this kind in advance of enforcement. A state could create liability for celebrating the Catholic Mass and courts would be helpless. The other, more likely reading is that this reasoning applies only to this case and not to future ones. The justices are not stupid. They will pretend to be only if – as happened in Texas – you challenge a law that they like. SOURCE
We talked about this upthread. It is a settled principle of law that you don’t enjoin state judges because you presume that if someone asks them to do something that violates the federal constitution, they won’t allow it.
I get it; it’s a bad thing. Even as pro-life and anti-Roe person, I would want to find a way to enjoin the law because the concept is dangerous, but some real smart people wrote it in a way that the existing law doesn’t handle. Should a judge just do things to get the preferred result? I don’t think so. I think the case is fascinating because I still don’t know how I would rule on the injunction, after studying the case law on and off for about a week. So, IMHO, no opinion, one way or the other is “alarming.”
What stops the SCOTUS from enjoining this?
Is the SCOTUS in the position that someone found an exploit to the law and they just toss up their hands and say nothing can be done? If you are ok with this then there is no limit to the legal mayhem that can be done. The Supreme Court is the bastion of the law in the US and you (and Texas and others) seem ok to maul it on a really thin technicality.
As noted in the bit I quoted above, if someone did this to stop people from celebrating Catholic Mass, would you expect the SCOTUS to tell us they can’t do anything…Catholic Mass has to be stopped until a lawsuit worked its way through the courts?
I agree. That is why I would be tempted to ignore the law. But the law is the only reason we trust the courts, and why we allow them to tell us what to do so there are not revolutions. Would you be comfortable with judges saying fuck the whole law because this sounds good to me personally?
ETA: None of these doctrines are “technicalities.” They serve enormous purposes in the law in thousands of cases. You want to throw them away so women in TX can have abortions?
SCOTUS has made law/precedent before. Starting with Marbury v. Madison.
Do you think enjoining this is a bigger reach for them? That to say someone cannot torture and mangle the law in such a fashion is ok?
I don’t think a judge should tell any litigant that the law is on his side but go fuck off because you applied it too neatly.
ETA: And in a way I personally don’t like.
Golden rule (law):
The golden rule in English law is one of the rules of statutory construction traditionally applied by the English courts. The rule can be used to avoid the consequences of a literal interpretation of the wording of a statute when such an interpretation would lead to a manifest absurdity or to a result that is obnoxious to principles of public policy. The rule can be applied in two different ways, named respectively the narrower approach and the wider approach . SOURCE
It is not “manifestly” absurd to prohibit abortion. Nor does this canon of construction lead to the right result. The statute MEANS to prohibit abortion. To construe it otherwise goes against its construction.
… or to a result that is obnoxious to principles of public policy.
Making the law in this fashion seems manifestly obnoxious to public policy.
Yeah, that’s where I would be looking harder if I was on SCOTUS. And trying…but I have failed so far.
But how? Just letting people sue for providing post six week abortions is so terrible I have to upend the law?
IOW, what makes it absurd? That as a judge I should protect Roe at the cost of the whole history of jurisprudence?
And I think that might be the point. That Roe is so shaky, such a bad decision, has caused this, that this Court simply must rule the right way in Dobbs.
When abortion was illegal in Ireland, women would get on a ferry to England where it is legal.
Now that abortion is legal in Mexico, will it mean that women from Texas who need abortions will be taking holidays over there and that a profitable industry will develop as a result.
"Mexico’s Supreme Court has ruled that criminal penalties for terminating pregnancies are unconstitutional.
The ruling, for the northern state of Coahuila, prevents women from being prosecuted for getting an abortion."
The issue here has nothing to do with abortion and everything to do with a state’s end-run around usual law and procedure.
THAT is what SCOTUS should be pissed about.
If they want to end abortions/Roe then do it.
This kind of dicking about with the law can have really unfortunate consequences that go well beyond Roe and that should absolutely concern the SCOTUS.