At Politico law prof Aziz Huq points out an inconsistency in recent Supreme Court decisions:
The conservative justices are quite selective when shuttering cases out of federal court and leaving their resolution to state judges. Take property rights: The court has recently doubted state courts’ historical ability to set the metes and bounds of property rights. And it has rejected the longstanding rule that someone claiming that their property has been “taken†by state law must first go to state court to get a conclusive ruling on what state law allowed.
In religious liberty litigation by Christian groups, the court again shows scant regard for state courts’ views about state law. In recent religious liberty cases, the conservative Justices have ridden roughshod over state law to reach their favored outcomes. Judicial deference to state decisions on public health — with literally tens of thousands of lives in the balance — has also been in vanishingly short supply when it comes to religious liberty claims.
Or consider an opinion that Thomas filed a year ago complaining that gun owners’ rights were being disfavored because the court had refused to review a law that imposed what he described as an “onerous burden†on Second Amendment rights. That would never happen, he grumbled, with abortion rights. Today, of course, he is the sole justice who would completely foreclose all federal court review of S.B. 8. So much for equal-handed justice.
Indeed, it is only disfavored rights now that get relegated to state court. When it comes to criminal procedure rights, the court confines many claimants to state tribunals by refusing to hear either appeals or to allow a collateral challenge in federal court. And its outright hostility to constitutional tort claims against police violence mean state law is often the only remedy for people whose constitutional rights are violated by police.
When it comes to regulating access to federal court, in other words, the present Supreme Court exercises a largely unfettered and ideologically infused kind of discretion. It has used this discretion to favor property owners and religious conservatives, while disfavoring criminal defendants. Abortion providers should have no illusions that they number among the elect of more favored constitutional litigants.
I think he may have a point. In checking out some of the decisions to which Mr. Huq referred although I found some, e.g. Stop the Beach Renourishment v. Florida Department of Environmental Protection which to my eye looked like unanimous decisions by the Court (and hence no partisan or ideological bias), but others, e.g. Knick v. Township of Scott, in which there did appear to be a partisan or ideological side to the decision.
I would greatly prefer a Court that decided based solely on accepted legal principles and precedent but, honestly, it’s unclear to me how that can be achieved. And, as noted above, a Court that oscillates between deciding based on a “conservative” ideology and one deciding based on a “progressive” ideology is even worse.
I don’t believe the data backs up Mr Huq’s point.
Yesterday, the Supreme Court ruled again against an emergency injunction against to stop a state vaccine mandate due to a lack of religious exemption.
Since the pandemic started, the Supreme Court stepped in with an emergency injunction only to stop Government decrees to ban religious gatherings for public health reasons — (almost a year into the pandemic) and there was evidence Governors / Mayors had targeted specific religious organizations.
Now to the meat of all the complaints, SB8. This is not about the merits/demerits of the underlying issue or the law itself.
My understanding is the Supreme Court has not ruled on the merits of the cases, or the constitutionality of the law. Indeed, the allowed the lawsuits to proceed in Federal Court where it made sense (against officials that could possibly enforce the law). The Supreme Court rejected the suing against State Court Judges / Court clerks to get an injunction — which is unprecedented and opens pandora’s box. The most similar analogy to SB8 is libel law (where the main mode of enforcement is through private action). The normal way to get a libel law’s scope narrowed or overturned is to be sued and then win based on a defense in law. It would be unorthodox to do so by suing a judge / law clerk; or suing the attorney general (who is not enforcing the libel law), or suing a private citizen who hasn’t filed a case; before a hearing from an actual lawsuit has been held.
I have been telling you this for along time. On the big cases where ideology really matters the court is partisan. Now they add to it by deciding which cases to hear or leave to the states.
Steve
The law professor is being pretty disingenuous in his description of the Texas abortion litigation, which as CuriousOnLooker notes is a procedural issue that appears unprecedented, or at least a law designed to require review to go through the normal steps.
1) Congress gave the U.S. Supreme Court jurisdiction to hear cases “where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States,” but only from the highest court of the state. (28 U.S.C. 1257) For instance, the men accused of violating sodomy laws in Lawrence v. Texas were arrested and convicted, their conviction was appealed through the state intermediate and final courts of appeal, at which time they petitioned the U.S. Supreme Court to review their conviction under the U.S. Constitution. This is defensive constitutional litigation.
2) Another strain of constitutional litigation are Section 1983 actions for violations of federal Constitutional rights. States are exempt from being sued under these laws. Thomas was complaining that the SCOTUS should have taken review of a lower court’s ruling in a gun case that he thought was wrongly decided. Review is discretionary.
3) Abortion rights have utilized a judge-made avenue for seeking a pre-enforcement injunctions in federal court against state officials charged with enforcing state laws. There is no state official charged with enforcing the anti-abortion law in this case, except I guess the licensing authority. If there was, then offensive constitutional litigation would be available.
Congress could have passed a low to provide support for the third option, but it has not. And there are probably some institutional / economy concerns with opening federal courts to every case that includes a constitutional challenge.