« Alabama Supreme Court dismisses SSM mandamus | Main | Jurisdiction, merits, and same-sex marriage »

Sunday, March 06, 2016

TRAP laws, rump SCOTUS, and the shadow docket

Four points.

  1) Based on arguments, one possible resolution in Whole Women's Health is a remand to build a better record as to 1) whether the state law caused the the clinic closures in the state and 2) whether the remaining clinics can meet the demand in the state. This would buy another year or more on the case, with enforcement halted in the meantime.

  2) On Friday, the Court stayed enforcement of Louisiana's admitting-privileges laws (specifically--the district court had enjoined enforcement and declined to stay the injunction pending appeal; the Fifth Circuit had stayed enforcement of the injunction pending appeal, making the laws immediately enforceable even as the appeal proceeded; and SCOTUS vacated that stay, rendering the laws not enforceable.

   3) WWH is one obvious candidate for a 4-4 split producing an affirmance by an evenly divided court, leaving in place the Fifth Circuit judgment declaring the state laws constitutional. Justice Kennedy has ruled in favor of the constitutionality of every abortion restriction the Court has considered since Casey and he is willing to buy even scientifically unsupported state justifications for restrictions (e.g., that women regret terminating pregnancies and the state can protect them against that regret by restricting their reproductive health options). Kennedy seemed at least somewhat skeptical of these laws during last week's arguments, although it is not clear whether he was skeptical enough to declare invalid these laws or the general concept of TRAP laws.

   4) There will be no one in Justice Scalia's seat until, at the earliest, October 2017. And perhaps beyond, depending on how the November election goes. That means that this 4-4 split may remain for several years (unless, of course, one of the remaining three 75-and-over Justices leaves the Court).

   5) This issue has the potential to reflect, in procedural terms, the marriage equality litigation: Many states enacting near-identical laws for similar reasons and purposes, such that a single SCOTUS decision necessarily knocks out the constitutionality of all laws, triggering a large state-by-state litigation campaign seeking that final decision.

So might the Court take the following out in the short-term?

Remand WWH to the Fifth Circuit for further factfinding on causation and/or capacity of remaining clinics. Kennedy (and maybe even the Chief) might like the out. And faced with the alternative of affirming an adverse lower-court judgment, Ginsburg/Breyer/Sotomayor/Kagan might be willing to go along. Meanwhile, bar enforcement of the laws from other states as they are challenged, which has the effect of maintaining the status quo (clinics remain open); eventually, the lower courts themselves will get the hint and take steps to halt enforcement pending appeal. Eventually, a case will be teed-up for merits resolution by a fully staffed Court--again, depending on who wins the presidency, who replaces Scalia, and who else leaves the Court in the first two years of the new administration.

Posted by Howard Wasserman on March 6, 2016 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


But one piece of this is not variable: President Trump or President Clinton lacks the constitutional power to nominate anyone until January 20, 2017. Even if she nominated/renominated someone on Day 1 of her presidency (which I doubt she will do), the last three appointments have taken about 3 months from nomination to confirmation (with a Senate majority from the same party as the appointing President). That puts us around April 20, the final week of arguments for the term. Is it worth it to join one of arguments and participate in about 6-9 cases? Push the naming of the nominee back by 10 days, still with a three-month confirmation, and now we're into May.

Yes, the vacancy is here already. But, as the situation stands, there is no way to get a nominee who will be acted upon until next January. The process only can play out from that date. Everything between now and then is irrelevant.

The only variable is if Senate Republicans cave on not considering/having hearings for/voting on Obama's nominee. But, as I said in my previous comment, I do not expect that to change.

Posted by: Howard Wasserman | Mar 8, 2016 6:34:21 PM

I speak only my opinion too but "will ... at the earliest" is strong language and I assume it was chosen over more tempered tones advisedly.

For instance, I think it reasonable to think that Clinton will win and the Democrats will retake the Senate. The first to me is more likely than not. The second reasonable enough not to assume otherwise on the level of "will" happen. For instance: http://www.centerforpolitics.org/crystalball/

If both happen, I reference Obama's first pick. Souter notified him in April and a new justice was in place by October. But, the vacancy is here already. No matter. Under your "will" happen, we'd be lucky if that occurs. Even though the President has a vacancy months later, not counting 2016 at all (e.g., there is a reasonable chance Clinton would re-nominate a good choice if the Republicans simply refuse to have hearings).

That's just one scenario. There are a range of possible variables. Thus, at this point, I would hedge more. My comments here are influenced by a level of assurance I have seen various places that to me is misguided. We just don't know yet.

Posted by: Joe | Mar 7, 2016 8:59:22 PM

It's only a prediction. But: 1) Senate Republicans seem serious about not moving on any Obama nominee and certainly on not confirming any Obama nominee; 2) The earliest Pres. Trump or Clinton could nominate is January 20 and it is unlikely either will have a nominee ready to go right at the beginning; 3) Even if they do, the Senate will take awhile to confirm, especially if it is Clinton nominating someone for a GOP Senate. All of which means it is unlikely someone will be in place by the end of April 2017, when the Court hears it's last arguments. So the first arguments Justice Srinivasan will hear, at the earliest, are the start of OT 2017.

Now, if the political dynamics of GOP inaction change, this all changes. But I don't see it.

And I guess I should clarify that a GOP Senate will move more quickly on a Trump nomination than a Clinton nomination. So if Trump wins, this changes as well. I was admittedly assuming (silently) a Clinton presidency.

And, FWIW, Sen. Johnson of Wisconsin has suggested that the seat should remain vacant until a Republican President is in power. So these guys don't seem to be messing around.

Posted by: Howard Wasserman | Mar 7, 2016 4:50:19 PM

I question #4.

Posted by: Joe | Mar 7, 2016 2:28:34 PM

I question #4.

Posted by: Joe | Mar 7, 2016 2:28:32 PM

The comments to this entry are closed.