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“The U.S. Supreme Court's new nine-month term, which begins on Monday, promises to be among the most momentous in generations. The justices are poised to decide major cases that could roll back abortion rights and broaden gun and religious rights.” Reuters
On December 1, the Court will hearDobbs v. Jackson Women’s Health Organization, “a challenge to a Mississippi law that bans almost all abortions after the 15th week of pregnancy.” SCOTUSblog
“Three Supreme Court justices delivered the same plea in rapid succession in recent days: Don’t view justices as politicians… The call by justices Clarence Thomas, Stephen Breyer and Amy Coney Barrett for the public not to see court decisions as just an extension of partisan politics isn’t new. But the timing of the recent comments is significant, just after a summer in which conservative majorities on the court prevailed over liberal dissents on abortion, immigration and evictions, and at the start of a blockbuster term.” AP News
“Democratic senators argued [last] Wednesday that rulings on the Supreme Court’s ‘shadow docket’ are inconsistent and overly politicized. Republicans called the shadow docket ordinary and said the term itself is designed to make the court’s emergency orders seem nefarious… The shadow docket is the informal term for expedited rulings that the Supreme Court issues outside its typical process of hearing arguments and handing down lengthy opinions.” SCOTUSblog
Here’s our recent coverage of the Texas abortion law. The Flip Side
The left criticizes the judges for claiming to be apolitical and worries that the Supreme Court will strike down Roe v. Wade.
“In past eras, the court has benefited from a veil of mystery. We don't often see (and only relatively recently have been able to hear) the justices at work: There are no cameras in the courtroom; deliberations take place behind closed doors; and printed opinions are usually handed down with little or no comment, as if from on high. These political defenses let the veil slip. ‘If [Justice] Alito is concerned about public perceptions of the Supreme Court,’ MSNBC's Steve Benen observes, ‘perhaps he should stop delivering speeches like these that adversely affect public perceptions of the Supreme Court.’ If justices want to be aloof from politics, they should stay aloof from politics.”
Joel Mathis, The Week
“The justices are not mere partisans. They occasionally diverge from one another on matters of legal philosophy and political preferences (this is also true of, say, senators). Roberts, in particular, evinces a concern for procedure and the Court’s legitimacy that leads him to occasionally side with the Democratic appointees. Justice Neil Gorsuch’s textualism can lead him to unusual places, such as his decision to uphold the Civil Rights Act’s protections for transgender people. In the majority of big cases, however, the justices do what they are expected to do…
“Make no mistake, I am not criticizing the justices or the conservative legal movement for pursuing their political project with zeal… What I take exception to is the demand from judges and justices that the public acquiesce to their self-delusion that they are wise sages who hold themselves above the vulgarities of partisan politics, even as they deliver sweeping victories to a conservative movement and Republican Party that have worked for half a century to achieve those victories.”
Adam Serwer, The Atlantic
“Though the justices’ docket is almost entirely discretionary, they are probably unlikely to heed warnings against making sweeping rulings on major social issues that could further alienate or inflame Americans, especially through the shadow docket. [Justices] Thomas and Barrett also appear unconcerned that they’re undercutting their claims of nonpartisanship by simultaneously taking public victory laps with Mitch McConnell. But if the justices are so alarmed with how the public sees them, maybe they should rethink whether one of the most important parts of our constitutional system should be so needlessly opaque.”
Matt Ford, New Republic
Regarding the abortion case, “Navigating a post-Roe country will be anything but simple. Perhaps the only certainty to expect is that a post-Roe country will be one of inequity. A little fewer than half of U.S. states, mostly concentrated in the South and the Midwest, are poised to ban abortion in almost all cases if the Supreme Court overrules Roe…
“Some of these bans will start immediately, either because of pre-Roe laws still on the books or new ‘trigger laws’ that will take effect the moment Roe is overturned. Scholars and activists have long noted that wealthy women in those states will be able to travel to other states to obtain abortions. But three-quarters of people seeking abortions are low-income, a group that is disproportionately people of color, and they will face barriers that will make it almost impossible to get to another state.”
Greer Donley, David S. Cohen, and Rachel Rebouché, The Atlantic
The right pushes back against criticism of the shadow docket and is hopeful that the Supreme Court will strike down Roe v. Wade.
The right pushes back against criticism of the shadow docket and is hopeful that the Supreme Court will strike down Roe v. Wade.
“Since about 2014 the Court’s emergency orders have become more frequent, despite the Justices’ preference that cases be resolved through the regular briefing and argument process. But the reasons for this have almost nothing to do with the Court’s ideological makeup, and almost everything to do with the increasing polarization in American society…
“The increasing trend of unilateral governance by the executive, rather than legislatures, [has] kicked cases to the Court on shorter timelines… The explosion of high-profile nationwide injunctions by lower courts has also forced the Supreme Court’s hand. Such injunctions started to climb in response to President Obama’s ‘pen and a phone’ governance in his second term, and accelerated as liberal district judges blocked President Trump’s policies…
“The Justices surely wish they weren’t jammed as often with emergency appeals on tight deadlines, but that’s a feature of polarized politics. Partisans are exploiting that polarization to coax the justices into delivering outcomes they prefer. But a judge’s job is to interpret the law, and the current Court’s relatively few ‘shadow’ orders don’t deserve the partisan attacks they’ve received.”
Editorial Board, Wall Street Journal
Regarding the abortion case, “There’s still a good chance the justices choose to just chip away at the court’s past abortion precedent rather than overturn it altogether. Knowing Chief Justice John Roberts, this is a very likely outcome. But there are three new conservative justices on the bench, each of whom, I believe, finds Roe and Casey legally flawed and devoid of constitutional merit. (Indeed, there are many liberal legal scholars who, despite their personal beliefs on abortion, would agree with them)…
“This case will force our new justices to choose between their own judicial philosophies and abortion precedent that has no value at all outside of keeping the liberal mob happy. And if there’s one thing we know these conservative justices value, it’s the independence of the court and the ability to issue rulings in line with the constitutional text rather than the politics of the day…
“Dobbs might make each of them into the next John Roberts, looking to split the difference. But I still hope, as does the rest of the pro-life movement, that this case will be a turning point for the Supreme Court and this country.”
Kaylee McGhee White, Washington Examiner
“Progressives are understandably worried about the direction that the Supreme Court could take in coming years, with arguably the strongest conservative majority since the election of Franklin D. Roosevelt in 1932. For well over half a century, the Supreme Court seemed an endless fount of progressive achievement, and some of those decisions could now be overturned…
“Naturally, progressives have become vehement proponents of stare decisis and now commonly argue that if the Supreme Court overturns any progressive precedents, it is ipso facto acting out of purely political motives and is therefore illegitimate. It’s worth remembering that most progressive judicial victories of the past century were decisions by courts that showed little regard for the precedents binding on them. ”
Mario Loyola, National Review