Judges have no robes

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The Supreme Court is facing a rule of law crisis on its own initiative.

In a late-night order in early September, the court allowed a Texas law to come into force that bans the vast majority of abortions. The law is enforced by people authorized to prosecute anyone who assists with a prohibited abortion. Doctors, paying friends, and even Uber or Lyft drivers who drop pregnant women off at clinics are in danger. Defendants who lose could face huge damages and be forced to pay plaintiffs a premium of $ 10,000 or more. Last week, the Department of Justice sued Texas, challenging the constitutionality of the law.

Not only did the unsigned court order actually make Roe vs. Wade dead letter in Texas, upsetting nearly 50 years of established law, it also destabilized more than 200 years of judicial responsibility. The Supreme Court abdicated its singular duty to protect our constitutional rights – no matter how controversial they are – and gave credit to a law specifically designed to prevent the judiciary from doing its only job.

In July, the plaintiffs Whole Women’s Health c. Jackson called on the Supreme Court to prevent Texas’ near-categorical abortion ban from coming into effect as its legality was challenged. A 5 to 4 majority of the Court rejected this request. On September 1, in a single paragraph of reasoning, the Court argued that a patently unconstitutional law must be implemented while its legality is challenged because its unusual legislative scheme raises enough questions for plaintiffs to fail to meet. the legal standard for an injunction.

The court focused on the fact that the state had delegated law enforcement to members of the public rather than government actors. In other words, it was not technically the state illegally introducing huge barriers to access to abortion, they said with a wink, but rather the state deputizing and inciting individual vigilantes to introduce these barriers on its behalf.

Disconcertingly, the court accepted these procedural shenanigans and refused to subject Texas law to normal judicial review, apparently because Texas did not want it revised. Reasoning by Texas and the Supreme Court Strains Credulity: The Texas Legislature Seeks to Avoid Guilt for Violating the Rights of Its Residents by Outsourcing Its Illegal Activity to Uterine Guard Dogs , and the Court seeks to avoid culpability for allowing the violation to continue by hiding behind procedural loopholes.

Secular precedents make it clear that it is categorically the responsibility of the judiciary to say what the law is. Judges exist, in theory, to recognize and provide remedies against unlawful intrusions into rights. When a law conflicts with our fundamental rights, the court is supposed to say so and curb bad behavior – and it has many legal tools to do so.

The Supreme Court abdicated that responsibility by endorsing Texas’ cynical bypassing judicial review. In accepting the state’s plan, the court asked legislative bodies across the country that they could undermine bodily autonomy if they craft their laws properly. The effect is to declare that disadvantaged political groups, such as low-income people of color who want or need an abortion, have no rights that this Court is required to respect.

The Court’s relentless use of procedural flimflam to deny millions of legal rights has betrayed a shocking infidelity to the law. As Justice Sonia Sotomayor’s dissent warned, “The Court should not simply ignore its constitutional obligations to protect not only women’s rights, but also the sanctity of its precedents and the rule of law. “. This self-induced tremor in the foundations of constitutional interpretation most immediately endangers the lives of millions of people in Texas who can become pregnant, as well as anyone who helps them terminate their pregnancy.

There is no reason to assume that it will end there. According to the reasoning of the court, its hands would be tied to stop the implementation of a law codifying segregation as long as a state outsources the execution to the public. We, residents of the United States who are governed but not protected by its laws, must now ask ourselves: which right will be next? And for whom? And if the Court does not exist to respect rights, why does it exist and why should it be respected?

This last question is perhaps radical. The behavior of the Court too. And the judiciary has no armies nor the threat of force to execute its judgments. It only has its reputation and its institutional legitimacy. He risks losing both when he behaves in deeply dishonorable and illegitimate ways. Like the emperor’s missing clothes, the Supreme Court risks exposing itself to a farce.


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