WASHINGTON – Exactly two months after Supreme Court let Texas actually ban the law most abortions in the country, he will hear a couple of arguments on Monday that could allow him to turn around. Much attention will be paid to Judge Brett M. Kavanaugh.
The court’s call for what the transfer means suggests that something is going on between the judges, he said Mary Ziegler, Professor of Law at Florida State University. “Someone who wasn’t on the fence is probably on the fence again,” she said.
For the first time, the vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the three Liberal members of the court in opposition.
If the outcome is to be different, at least one member of the Conservative majority will have to switch sides. Legal experts say the most likely candidate is Judge Kavanaugh, who has gained tremendous power as a judge at the court’s ideological center, shares some of the chief judge’s concerns about protecting the court’s institutional authority, and is sensitive to public opinion. .
In his Supreme Court career, which began in 2018 after bruises and a partisan fight for confirmation, Judge Kavanaugh spent most of the 87 percent of his time in shared decisions in contentious cases, beating the career records of all judges appointed since 1937. .
At his solemn oath at the White House, Judge Kavanaugh stressed after a presentation by President Donald J. Trump that he is a fan of the Chief Justice. “Chief Justice Roberts is a principled, independent, and inspiring leader for the U.S. judiciary,” Judge Kavanaugh said.
He then voted with Chief Justice Roberts at a very high rate. In shared decisions in contentious cases in the last term, for example, both men voted together 91 percent of the time, the highest level of consensus among judicial pairs, one equaled by only two members of the court’s liberal wing, Judges Stephen G. Breyer and Sonia Sotomayor.
All of this suggests that Judge Kavanaugh’s vote will be decisive in two challenges to Texas law that will be challenged on Monday, one by abortion practitioners and the other by the Biden administration.
“Kavanaugh is probably most susceptible to changing positions, mainly because I see him as most connected to the instincts of the Chief of Institutional Protection,” he said. Michael C. Dorf, professor of law at Cornell. “But I don’t think he’s very receptive.”
The mere fact that the court agreed to deal with the appeals on Monday on an extremely fast track is a sign that at least one member of the original majority may be at stake, he said. Lawrence Baum, a political scientist from the state of Ohio.
»The recent research The decline in the court’s approval of the general public seems to have made some judges more sensitive to how people outside the court react to its decisions, ”he said.
Texas law prohibits abortions after about six weeks and makes no exceptions for pregnancies resulting from incest or rape. In a new structure designed to isolate the law from the judgment of the federal court, it prohibits state officials from enforcing it and instead allows private individuals to sue anyone who conducts the process or “helps and supports” it.
The patient may not be sued, but doctors, clinic staff members, counselors, and people who help pay for the procedure or drive patients to it are all potential defendants. Plaintiffs are not required to live in Texas, have any connection to an abortion, or show any injury as a result, and are eligible for at least $ 10,000 and legal costs if they win. Defendants who win the case are not entitled to legal fees.
An early Supreme Court hearing of the case, culminating in an order issued just before midnight on Sept. 1, severely divided the judges. V unsigned opinion in that previous case, a majority of five judges cited “complex and new” procedural obstacles to blocking the law and stressed that it does not rule on the constitutionality of the law.
“The negative responses to the Sept. 1 decision probably surprised some judges in the majority,” Professor Baum said, “so one or more of them felt the need to dispel the feeling of responding to the challenges of Texas law in a cavalier way that is simply reflect their attitude towards abortion. “
Where does that leave Judge Kavanaugh?
For starters, he is a member of the court who will most likely acknowledge the strength of the other party’s argument.
“There are very strong interests here on both sides, which obviously makes the case more difficult,” he said last year at quarrel on whether employers can refuse to provide insurance coverage for contraception through religious opposition.
“There is religious freedom for the little sisters of the poor and others,” he said, referring to the Order of Nuns, which did not want to provide coverage. “There is an interest in ensuring women’s access to health care and prevention services, which is also a critical interest.” (He later joined majority opinion in favor of the nuns.)
Disagreement last year from decision on the protection of LGBT workers from discrimination in employment, Judge Kavanaugh said the result was the required wording of the relevant statute. “The court has already stated and I totally agree that gay and lesbian Americans“ cannot be treated as social outcasts or as inferior in dignity and value, ”he said and quoted opinion Judge Anthony M. Kennedy, who replaced him in 2018.
That last statement, Professor Ziegler said, was part of a sample that shows Judge Kavanaugh is sensitive to how he is seen beyond the court.
“They try to distance themselves from the politics of the ruling and show that he is a sympathetic person and a good man,” she said.
“Kavanaugh cares about his personal legacy and is interested in how he is perceived – and not just others who are in the conservative legal movement,” she added.
Because of this, his fellow conservatives are sometimes nervous, Professor Dorf said. “The way the right constructs this is that it’s a kind of weakness or vanity,” he said. “A more favorable view is that he wants to be convincing for a wide range of informed opinions.”
Judge Kavanaugh, before his affirmative hearings, moved easily in elite circles, among which he vehemently denied allegations of sexual abuse.
Understand Texas abortion law
He taught at Harvard Law School for a decade, e.g. obtaining positive evaluations from his students.
At the second hearing, after allegations surfaced against him, he said Democratic senators sent him into some sort of exile.
“I love teaching law, but thanks to what some of you have initiated on this side of the committee, I may never be able to teach again,” he said.
This turned out to be only partially true. Judge Kavanaugh has not taught at Harvard since joining the court (or at Georgetown or Yale, where he also taught), but he offered courses at the Antonin Scalia Law School of George Mason University, which has a conservative reputation.
Liberal activists protested in front of Judge Kavanaugh’s home September in a Washington suburb and urged him to support abortion rights. The move drew criticism from senators on both sides.
“There’s something to be understood about Kavanaugh: he wants to be liked and admired,” Ruth Marcus, author of a book on justice, he wrote in The Washington Post. “Unlike some of his conservative colleagues, he enjoyed being part of and respecting the legal institution.”
Judge Kavanaugh’s questions Monday can give only a few hints about his stance on Texas law, much less whether he is willing to vote to repeal Roe v. Wade. In fact, the arguments in the case of Texas are likely to address the fate of the constitutional right to abortion only in passing, if at all. The court will take this issue seriously on December 1, when it will hear arguments in the case of challenging the 15-week ban on abortion in Mississippi.
In this case, the court was asked to overturn Roe, a 1973 decision that ruled that the constitution does not allow states to ban abortions before the fetus survives or about 23 or 24 weeks.
In contrast, the issues that the court agreed to rule on in the Texas case are procedural as to whether abortion providers and the federal government can sue to challenge a law written to avoid review.
The court will provide live audio, as it does now with all arguments.
“For the average person, this is going to be confusing,” said Professor Dorf, who is report of a friend of the court support to the Ministry of Justice. “The question that this case really raises is the most difficult question in the federal courts, that is: when does a constitutional right have a right to a judicial remedy and what judicial remedy?”
Tara Leigh Grove, a law professor at the University of Alabama, said the questions before the court were weighty but technical. But she added that the bigger problems in the matter cast a shadow.
“The process is never just a process,” she said. “Jurisdiction is never just jurisdiction.”
Professor Ziegler agreed, adding that the previous court order in the Texas case was eloquent.
“No matter how ingenious Texas law was and how real there were real procedural obstacles,” she said, “it’s just an unusual belief that a court, if there was another constitutional right, would behave in the same way. So it was definitely Roe. “