A sharply divided Supreme Court early Thursday said it will not block a new Texas law that deputizes any Texan to enforce a six-week ban on abortions. Five justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — explained in a brief, unsigned majority opinion that the abortion advocates asking for an emergency stay “raised serious questions regarding the constitutionality of the Texas law at issue,” but they were unable to untangle the “complex and novel antecedent procedural questions” raised by the law.
The four dissenters — Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — argued in separate rebuttals that their five colleagues, without any real debate, were rewarding Texas lawmakers for inventing a novel scheme to stomp on decades of Supreme Court precedent.
“The statutory scheme before the Court is not only unusual, but unprecedented,” Roberts wrote, and he would have granted “preliminary relief” at least until “the courts may consider whether a state can avoid responsibility for its laws in such a manner.” Instead, the court allowed the law to take effect before lower courts weighed in, “without ordinary merits briefing, and without oral argument.”
Sotomayor was more direct, calling the court’s decision “stunning” and saying the five-justice majority “opted to bury their heads in the sand” while Texas “flouts nearly 50 years of federal precedents” by “outsourcing the enforcement of unconstitutional laws to its citizenry.” Essentially, “the Texas Legislature has deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures,” she wrote, and the court is rewarding this “breathtaking act of defiance — of the Constitution, of this court’s precedents, and of the rights of women seeking abortions throughout Texas.”
Breyer wrote that he doesn’t see how Texas’ enforcement-delegation scheme “should make a critical difference,” since it still “threatens to invade a constitutional right.”
Kagan said the court should not have greenlighted a “patently unconstitutional law” with barely any discussion and “less than 72 hours’ thought.” The five justices gave only “cursory” review to the submitted documents, and “barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail,” she added. “In all these ways, the majority’s decision is emblematic of too much of this court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.” You can read all the opinions.
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