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US supreme courtThe post-Trump supreme court: where hard-won rights die in darkness Orders – such as on the Texas abortion law – issued in the dead of night on the so-called ‘shadow docket’ threaten the court’s legitimacy and US democracyEd Pilkington in New York@ More
OpinionAbortionFeminists warned about America’s abortion crisis for years. We were written off as hystericalMoira DoneganWhy has the effective end of Roe v Wade been met with shock by so many corners of political life? Sat 4 Sep 2021 06.00 EDTLast modified on Sat 4 Sep 2021 06.01 EDTThis was predictable. In fact, it was predicted. The end of Roe v Wade and nationwide protections for abortion rights became likely in 2016, the night that Donald Trump was elected. It became inevitable in 2018, when Anthony Kennedy, the fifth pro-choice vote, retired and handed his seat to Trump to fill. But the end of nationwide legal abortion in America has been coming for decades, and there has been no ambiguity about the appetite for Roe’s overturn on the American right. And crucially, feminists have been sounding the alarm for decades, warning in increasingly desperate terms that gradual erosions of Roe’s protections in the law had led to a rapid and widespread loss of abortion access on the ground.Republicans seethe with violence and lies. Texas is part of a bigger war they’re waging | Rebecca SolnitRead morePerhaps the form of Roe’s eventual downfall was a surprise. Few thought that Roe’s fatal case would be over Texas’s new abortion law, with its privatized enforcement system of bounty-hunting civil suits designed to elide judicial review. And among a sea of legal observers, only Cardozo law professor Kate Shaw seems to have predicted that the court would dispose of a long-established constitutional right in so rushed and perfunctory a proceeding as a late-night order on the shadow docket. But this outcome was never in doubt. Trump promised to appoint antichoice judges. He kept that promise. This week his three appointees – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, joined by Samuel Alito and Clarence Thomas – did what all of them know they were put on the court to do. They allowed the first state to outlaw abortion within its borders.So why has the effective end of Roe v Wade, coming in a one paragraph order in the wee hours of Thursday morning, been met with shock by so many corners of political life? The Republican party’s control of the federal judiciary had left little doubt that those judges most inclined to strip women of their rights would have both the power and the opportunity to do so. And yet politicians, pundits, and legal observers had for years assured the public that the justices would not gut abortion rights, despite the clear evidence that they would. We were assured that the Republicans on the court were less determined to gut Roe than they appeared to be, and that those worried about the future of abortion rights were overreacting.The court would not gut Roe, we were told by politicians and academics, because they said they wouldn’t. Kavanaugh, the ruddy-faced Trump appointee, had referred to Roe as “important precedent”. That this rather tepid comment was a disingenuous bit of posturing meant to ease his confirmation to the court was evident to everyone. Nevertheless, defenders of the confirmation process implored the public to treat it as if it had been uttered in good faith.In a speech announcing her decision to vote to confirm Kavanaugh, Senator Susan Collins said that she believed Kavanaugh would not vote to overturn Roe, or to gut it procedurally, because “his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.” Of course, the court, with Kavanaugh’s help, did effectively overturn Roe “by stealth” – in an unsigned order in the middle of the night.Of the feminists who opposed his nomination, Collins was dismissive, even patronizing. “We have seen special-interest groups whip their followers into a frenzy by spreading misrepresentations and outright falsehoods about Judge Kavanaugh’s judicial record.” She condemned these women’s concerns as “over-the-top rhetoric and distortions”.The court would not gut Roe, we were told by the legal world, because the justices were too professional. Barrett, the third of Trump’s appointees, had been a member of an antichoice faculty group while a law professor at Notre Dame. She had given a lecture to a Right to Life group; she had signed a letter condemning Roe and its “brutal legacy”. And yet despite Barrett’s extremist and evidently very passionately held views on abortion, people posing as serious told us that we could not know how she would vote on abortion rights, that the opinions and worldviews of judges would somehow not affect their legal judgement. “My personal views don’t have anything to do with the way I would decide cases,” Barrett told Senator Patrick Leahy when she was asked about her lengthy history of anti-abortion advocacy. The statement insulted both Leahy’s intelligence, and ours.And yet as conservative, antichoice judges consolidated their power, several myths about the court persisted. We were told that the people who looked like rabidly conservative justices were really reasoned moderates; or that at least they would be professional and impartial in their judgements; or that at least the removal of abortion rights would move slowly. These myths were presented as the only serious way to understand the court. Feminist claims that what appeared to be happening really was happening – that the judiciary really had been taken over by antichoice zealots, that the ability of women to control their own bodies and lives would soon be stripped away – were labeled as delusional and silly. Faith in the integrity of the conservative justices was cast as informed, mature, and intelligent. And it was contrasted with the supposed hysteria of feminists, whose passion and fear was taken as a sign of their own delusion, not as an indication of the seriousness of the problem.This notion, that the only intelligent response to a threat to women’s rights is to be calm, blasé, and preemptively assured that nothing very bad or important will result, has been weaponized with particular insidiousness over the course of the abortion debate during the past five years. In the halls of power, contempt for abortion rights activists was nearly complete.After Kennedy’s resignation, the CNN host Brian Stelter took to social media to scold a liberal activist for her fear of a Roe reversal. “We are not ‘a few steps away from the Handmaid’s Tale’,” he wrote. “I don’t think this kind of fear-mongering helps anybody.” Confronted with women opposed to the confirmation of Kavanaugh, Senator Ben Sasse all but rolled his eyes. There had been, he said, “screaming protesters saying ‘women are going to die’ at every hearing for decades.”The insistence that Roe is not in danger, and that women’s fear is silly, persists even now, after the court has effectively ended Roe. “Now breathe,” wrote the law professor Jonathan Turley in a blogpost urging women’s rights advocates to calm down, as if they were toddlers in the midst of a temper tantrum. “It is ridiculous to say that it was some manufactured excuse for a partisan ruling.”Is it ridiculous? The public has no real reason to believe that the supreme court is acting in good faith – aside from the repeated assurances of supposed experts whose predictions have usually been wrong. Instead, it was the so-called alarmist feminists, the ones warning about manufactured excuses for partisan attacks on abortion rights, who got their predictions mostly right. Maybe these women are not so ridiculous after all. Maybe it’s time to start listening to them.
Moira Donegan is a Guardian US columnist
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OpinionAbortionThe Guardian view on the Texas abortion ban: this is not the endEditorialThe supreme court’s refusal to block the law marks a grave blow to the freedom and safety of women Thu 2 Sep 2021 13.45 EDTLast modified on Thu 2 Sep 2021 14.31 EDTThe cruel, vindictive and dangerous law that has taken effect in Texas is much more than the most extreme anti-abortion legislation in the United States. To many, it understandably feels like the beginning of the end – denying women the rights enjoyed under the landmark Roe v Wade ruling, which established that abortion is legal before the foetus is viable outside the womb, at around 24 weeks. It will further embolden the religious right. Though polling suggests the majority of Americans believe that terminations should be legal in most or all cases, this is already the worst ever legislative year for restrictions.But it is better understood as the end of the beginning. The right to abortion has, in practice, been systematically dismantled through methods ranging from intimidation to cynical regulation. This moment is the culmination of the first stage in a decades-long war on the rights of women, made possible by Donald Trump’s appointment of judges known to support restricting reproductive rights. A divided supreme court refused to block the legislation while the legal battle over it plays out.This is a near-total abortion ban, with an exemption only for medical emergencies. The six-week limit in practice applies not from fertilisation, but from six weeks after a woman’s last period, used by doctors to date pregnancies – when most women will not even know they are pregnant. Up to 90% of the state’s procedures happened after that time. International evidence, and America’s own past, testifies that it will not stop abortions. It will push them underground, endangering women’s health and lives. It is an attack on the rights of all women, but above all will punish those who are poor and black, who already struggled to access services and will not be able to travel outside the state easily. It will hurt women who want to control their own bodies, including survivors of incest, rape and abuse. Many states have enacted similar laws, which have been blocked. But this one is especially egregious. It has used the architecture of the state to promote the rule of the mob. It prohibits officials from enforcing it, instead deputising ordinary citizens to sue anyone for suspected violations. While designed this way to make legal challenges harder, it is part of the broader turn of Trump Republicans towards vigilantism and away from democratic institutions. By promising a $10,000 bounty to anyone who sues successfully, it encourages the greedy as well as vindictive ex-partners and zealots to act. Not only abortion providers, but anyone who “aids and abets” an abortion is liable; it appears that even someone who drives a woman to a clinic could be targeted. There is no redress against malicious suits, even in cases where the plaintiff has a past history of similar claims. The result is that doctors and providers who comply with the law can still be put out of business by vexatious claims.Justice Sonia Sotomayor’s blistering dissent attacked the supreme court’s inaction in the face of “a breathtaking act of defiance – of the constitution, of this court’s precedents and of rights of women seeking abortions throughout Texas”. But she is in the minority as the court prepares to rule on a separate case – Mississippi’s ban on most abortions after 15 weeks – which anti-abortion activists see as a chance to overturn Roe v Wade. If that happens, bans will automatically come into force under trigger statutes enacted by multiple states. Others would be able to enforce pre-Roe v Wade bans that remain on their books.This law, like the wider anti-abortion drive, hurts women’s freedom, their health and even their lives. It has been achieved through the relentless efforts of activists who are not merely egging on but also funding others around the world. Meeting and defeating these challenges will require an equally committed, comprehensive and ambitious campaign. The opponents of women’s freedom will not stop. Defenders cannot either. This law will galvanise them.TopicsAbortionOpinionWomenUS supreme courtHealthRepublicansUS politicsLaw (US)editorialsReuse this content More
OpinionUS politicsTexas now has abortion ‘bounty hunters’: read Sonia Sotomayor’s scathing legal dissentS More
OpinionUS politicsIt’s time to brace ourselves for a world without Roe v Wade. Here’s what we must doK More
OpinionUS politicsThe US supreme court is deciding more and more cases in a secretive ‘shadow docket’Moira DoneganThese emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court Tue 31 Aug 2021 06.14 EDTLast modified on Tue 31 Aug 2021 16.45 EDTLast week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.And all of this is before we get to the shadow docket’s real problem: it further undermines the already severely damaged public trust in the court. The justices and the legal elites who flatter them like to say that the supreme court is composed of neutral, apolitical arbiters of the law. But this mythology conflicts with a growing public perception of the federal judiciary as protectors of Republican priorities. This impression is not helped by the reality that the court’s decisions on the shadow docket seem much less consistent in their legal reasoning than they do in their politics. In light of this, it is tempting to conclude that the court has transformed the once-anodyne tool of the shadow docket into a way to achieve the preferred outcomes of the conservative majority without having to justify its own actions to the public.Steve Vladeck, a University of Texas law professor and one of the shadow docket’s most prominent critics, summarized the danger in an article in the Harvard Law Review. The shadow docket, he writes, “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time – perhaps depending on the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending on the political or ideological valence of the particular government policy at issue”.With respect to Professor Vladeck, maybe the shadow docket does not risk such a perception – maybe it reaffirms it.
Moira Donegan is a Guardian US columnist
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CaliforniaCalifornia man charged with attacking police with a pole and chemicals during Capitol attackTwo Los Angeles men allege David Dempsey had used the same tactics to assault them during protests five months earlier Lois Beckett@ More
