SCOTUS Maybe Tired Of Being Played, Might Be Playing Own Game

I saw an intriguing article earlier this evening that’s nagged at me. Enough so I went to the source of where the article drew its material from and read a much more comprehensive report of a dialogue between Slate Magazine’s Dahlia Lithwick and Mark Joseph Stern. The Slate piece itself is a summary of a longer discussion between the two and even then it’s a fairly involved thing to get through. So I’ll do my best to hit what to me are the main points. Let me start by noting that if you watch much MSNBC you might be familiar with Lithwick. I know I’ve seen her there as a legal pundit on a regular basis. What matters is both she and Stern are both law school grads and have extensive experience covering the courts and yes, SCOTUS.

Let’s start with the general premise, which is that there are signs SCOTUS and the conservative Federalist Society groomed appointees included have been showing signs of impatience, if not being fed up with the far right and the cases they keep bringing. If you read and digest the entire article is does make a point that no “conversion” has taken place. Rather, the conservative Justices are getting fed up with being embarrassed as they were in for example 303 Creative v. Elenis. This was a case the Alliance Defending Freedom which I’ll refer to as ADF (it’s another group with an outrageously misleading name) persuaded them to take up the case of a Colorado baker who supposedly refused to prepare a wedding cake for a same-sex couple because “it would violate her religious beliefs.” The whole thing was bogus. Made up. I won’t bore you with all the details but the fact it was bogus came out as the Court was considering the case!

They could have and should have simply dismissed it, if only on the technicality of “standing” and waited for a legitimate case where there were actual facts in evidence. It’s not like the conservatives don’t have a desire to create “Christian” RWNJ version of a wet-dream of imposing their beliefs on everyone. Maybe they thought the proverbial train had gone too far down the tracks with too much momentum so they went ahead and issued a ruling in favor of the “baker.” It’s safe to say whatever they might have anticipated the blowback proved embarrassing for them.

That’s likely why they denied Cert to the case that prompted the discussion I’m writing about. Tingley v. Ferguson is a First Amendment challenge to Washington state’s ban on LGBTQ+ conversion therapy for minors. Again, it’s probably a safe bet that with more than two dozen states having laws allowing so-called gay conversion therapy on the books many if not all the conservatives on SCOTUS would like to provide legal cover for that despicable practice. Which if you don’t know is considered illegitimate by mainstream Psychological and Psychiatric groups and Journals. However, as with the case I already spoke about the case presented to them (FYI, again the ADF represented the plaintiff) was bogus. This time SCOTUS rejected it.

The thrust of the discussion was that perhaps SCOTUS is tired of getting burned. Of being played for fools.  I (and I’m not alone) express the view conservatives have no shame, but some do. It’s likely even many of the conservatives on SCOTUS are sensitive to the beating the Court’s reputation has been taking. Roberts in particular. Again I must note something that’s in the article but which Senator Sheldon Whitehouse (If only HE was Chair of the Judiciary Committee instead of Durbin!) has been sounding the alarm about for years. The Federalist Society and other groups have for a very long time been seeding the federal system with all sorts of case that are slowly percolating.  There ARE cases out there with some actual legal facts about real people and events that can hold up to scrutiny. One day, maybe soon or maybe not for a while the conservatives on SCOTUS will get a crack at the gay conversion therapy thing and other “Christian” hobby-horses too.

For the moment though it seems like they might be trying to avoid some of the controversy they once thought they were immune to. Although not mentioned in the article an attempt to challenge an Illinois gun law was immediately rejected. Last week as I recall. I’m not kidding. And then there’s a prominent case they HAVE decided to take up, although why could be interesting. It’s the basis for the second half of the title of this piece.

SCOUT has decided to accept the case the ADF (Yep, them again!) judge-shopped to get a ruling to block use of the drug Mifepristone which is the first pill taken in the two-pill combo used in most medical abortions.  Once again since if you’re reading this I don’t need to go into all the details including how banning the drug has much wider implications than medical abortions. It could gut the FDA’s entire approval process and create incalculable chaos on a wide scale. Still, my first reaction on hearing SCOTUS had granted Cert was “OMFG, would they really dare? Odds are Roberts can’t exert enough control to stop at least two of the Gorsuch, Kavanaugh and Barrett trio.”

However, concerns might in one sense be overblown. Like the prior two cases I’ve talked about this one has an issue with legal “standing” to bring the case. It’s built on the hypothetical possibility that someday the plaintiff doctors might feel badly about having to treat a woman who winds up needing a surgical abortion because she experienced complications (it’s quite rare but does happen) with the medical procedure. “They might feel bad” if that happens is the “foundation” the case is built on.  It’s all hypothetical since none of the doctors involved have actually had to provide the medical care in question. Therefore they lack standing and while SCOTUS could have already declined to hear the case on that basis alone they accepted it. Perhaps, as Lithwich says they’ve got a trick up their sleeve.

If I’m not mistaken oral arguments will be well after the first of the year, and pundits predict a decision won’t be handed down until June. Bear in mind the beating the GOP has taken since the Dobbs decision. Alito and Thomas don’t care but the other four Federalist Society F-wads do. It’s cost the GOP huge in election after election, whether we’re talking about ballot initiatives protecting abortion right passing handily even in red states, or specific legislative races both state and federal. The Justices who vote for Dobbs assumed there’d be a few months of outrage and then folks would move on.

It didn’t work that way. It turned what otherwise would have been a “Red Wave” in the midterms into barely a trickle. It’s about to cost the GOP the House and even with a Senate map quite favorable to the GOP perhaps allow Democrats to retain their majority. It will ensure despite the doom and gloom losing the WH again. And it will cost the GOP at the state level too, leaving them vulnerable to more fairly drawn legislative maps for state legislatures and Congress. Thomas and Alito are old and who knows? In a second term Biden might get not one but two chances to name new Justices and poof goes that 6-3 conservative majority!

However, IF SCOTUS is willing to endure some conservative outrage over headlines about them caving on abortion they could take away a fair chunk of Democrat’s momentum next year. Not that as the dialogue in the linked article notes couldn’t turn right around and use the Comstock Law (or something else) as a vehicle to crack down again. As I so often do I suggest taking the time (and it will take a fair amount of time) to read and digest the linked article. Since the back and forth is quite a bit more involved than what I’ve laid out here I’ve avoided quoting from it but I will include one that makes the point I’ve just raised:

 I think it’s worth saying here that if the Supreme Court does toss the mifepristone case on standing, it’ll get headlines that say “Supreme Court Preserves the Right to Medication Abortion,” and that will dampen an immense amount of political enthusiasm around reproductive rights. The conventional wisdom will be that the Supreme Court has taken itself out of the 2024 election, at least on this issue. Which won’t be true, because the court could still invoke the Comstock Act later to make abortion illegal in all 50 states.

But the larger point is that the Supreme Court could manage to deflate all the energy and enthusiasm among women and people who’ve been organizing after Dobbs. And that would be a really big indicator that the Supreme Court keeps gaming the press. It will make the court bottom of mind as we launch into a 2024 election where the court should be top of mind.

That’s why I say conservatives on SCOTUS might be tired of being embarrassed by right wing types pushing culture war cases on them one after another these days. Especially cases that are if not completely bogus aren’t rock solid with an unimpeachable set of facts and well thought out District and Appellate opinions. That Litchwick and Stern are right they are tired of “being gamed.” But they also warn us those same Justices that are annoyed might be playing game of their own. A POTLICAL game to influence the 2024 election.

With that I bid you good night, and hope the week ahead is a good one for you.