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Wednesday, June 27, 2018

(SCOTUS Term) What is back in play with Kennedy retiring?

Some random thoughts on Justice Kennedy's retirement:

• I agree with Mike Dorf's argument that it is silly to doubt how this will play out--the Republicans have 51 votes, there is no filibuster, Senate Republicans all are going to be on board, and Mitch McConnell will make sure this happens before the elections. I would add that President Trump announced that his nominee would come from a list of 25 names that the White House posted in November, all of whom no doubt are pre-approved by White House Counsel and the Federalist Society; there is not going to be a Harriet Myers or Harold Carswell to gum up or delay the works. (Some of us at FIU would be fascinated to see Trump nominate Labor Secretary, and our former dean, Alex Acosta, although he is not on the list). And I do not believe the risk of overruling Roe/Casey or Obergefell will cause Collins or Murkowski to defect.

• This is the last chance chance for Eric Segall's eight-person/4-4 partisan Court. In fact, it is the perfect chance, even better than 2016. It would leave two divided camps with no real median Justice between the camps, precisely what Segall has in mind to force some compromise.

• Constitutional protection for reproductive rights is history at some point soon. The only question is what state's outright ban on abortion will reach the Court first. Any other doctrines for which Kennedy was the fifth vote with which his replacement may disagree? Might a state reenact and attempt to enforce a sodomy law or a same-sex marriage ban? What will happen with marriage-equality adjacent issues (custody, adoption, etc.)? Note that under judicial departmentalism, nothing stops a state from enacting and enforcing such laws other than the certainty of a judicial loss. Depending on Kennedy's replacement, that certainty is gone. 

• If Republicans keep the Senate in November and Trump remains unpopular, might Thomas retire next year (there were rumors he might go this year)? That would give Trump the same number of SCOTUS appointments in one term as Reagan had in two and more than Obama, Bush II, or Clinton had in two. The 18-year term limits proposals look increasingly sensible.

Posted by Howard Wasserman on June 27, 2018 at 04:36 PM in 2018 End of Term, Howard Wasserman | Permalink


Howard - for what it's worth, I am confident that -- assuming Justice Kennedy is replaced by one of the List-occupying Mentioneds, that (a) the Court will, as long as it can, employ the Casey "undue burden" standard, but in a more deferential way; (b) whether or not the Court eventually "overrules" Casey (and replaces it with, say, the position set out in Rehnquist's opinion in that case), (i) state legislatures and (ii) state supreme courts will, either by statute or by interpreting state constitutions, continue to recognize and enforce a right (which is subject to reasonable regulation, but not prohibition) to abortion. Some states will limit the right more than others, obviously -- some will fund the procedures, others will not -- but Toobin-style predictions of outright bans seem far-fetched to me; much more likely are democratically enacted compromises, like we see in many places outside the United States.

Posted by: Richard Garnett | Jul 1, 2018 12:25:18 PM

Because there is nothing to decriminalize--abortion is not prohibited under federal law.

James: I agree that progress (as I define it) will not be made on these civil rights issues. My question was whether the limited foundation will be overruled, so that sodomy or same-sex marriage again can be made unlawful.

Posted by: Howard Wasserman | Jun 28, 2018 5:17:11 PM

Chuck Schumer has introduced a bill to decriminalize marijuana. Why doesn't he introduce a bill to decriminalize abortion? He is a coward or a hypocrite?

Posted by: Thought Crimes | Jun 28, 2018 5:13:09 PM

We all agree that a waiting period doesn't overturn Heller, right? Well then a waiting period doesn't overturn Roe.

If there's nothing wrong with only having one gun store in a state 150 miles away from the major city, then there's nothing wrong with only having one abortion clinic 150 miles away from the major city.

All Roe said was that first-term abortion was decriminalized. Just like Heller allows gun-control, Roe allows abortion-control.

Posted by: Gorsuck this | Jun 28, 2018 3:31:22 PM


Roe is already effectively dead letter in many parts of the country

No state is imprisoning doctors for performing first-term abortions, and yet Roe is a "dead letter". That proves that "outlawing abortion" doesn't really mean "outlawing abortion".

That would be like saying outlawing handguns makes the second amendment a dead letter even though, as Biden says, the second amendment only covers shotguns.

Posted by: Dead Numbers | Jun 28, 2018 2:43:42 PM

While I understand the focus on "what will get overturned" I think there is a much larger issue at play. It is "what will never happen". Most immediately, the rights of transexuals are dead. Children will be forced to use the bathroom of their birth sex.

In other words, the entire framing of "let's not go backwards" is a tacit admission there is no way forward on socially liberal issues. That alone will change both the tenor and tone of our culture moving into the future.

Posted by: James | Jun 28, 2018 2:25:13 PM

CNN includes (1) "defunding planned parenthood" and (2) "not requiring insurance companies to cover abortions" as "outlawing abortions".

If they thought the supreme court was going to outlaw abortions, they wouldn't have to add those other two things to the definition of "outlawing abortion".

Abortion won't be outlawed in this country ever again.

Posted by: Abrtion will remain decriminalized | Jun 28, 2018 2:05:45 PM

"Constitutional protection for reproductive rights is history at some point soon."

Depends on what that means. I don't think Griswold is DOA myself.

Some form of Rehnquist's plurality in Webster? Maybe. I also don't know about same sex rights. I'm guardedly hopeful Roberts admits by now same sex marriage is settled. Can't re-cork that bottle a few years in. So, it is a question of outer limits. I'm not sure other than Masterpiece like cases.

Living in the midst of history is interesting but not only that, tbh.

Posted by: Joe | Jun 28, 2018 10:49:15 AM

Some states repealed their (statutory) bans after Obergefell, so they would have to reenact. Otherwise, yes, it could just begin enforcing.

Do Fed Soc judges care less about same sex marriage than abortion? Trump has said marriage is settled but abortion isn't. But I don't know how strongly the new justice will feel about it. A lot depends on how strongly the states and activists push the issue.

Posted by: Howard Wasserman | Jun 28, 2018 9:23:20 AM

Why do you say "if a state enacts a same-sex marriage ban?" As I believe you have pointed out before, courts don't actually "strike down" statutes, as in erasing them from the code - the majority of states (35 or so, I believe) already have such laws on the books, and it would just take an act enforcement (more accurately, a refusal to recignize). No legislature would need to pass a new law in order to make a reversal of Obergefell a possibility.

Posted by: Ryan | Jun 28, 2018 8:39:14 AM

If a state passes a law abolishing same-sex marriage lower courts will presumably strike it down. Will the court grant cert to overrule those courts? I don't know the answer but I am not sure there will be 4 votes for that. The conservative justices did not support Obergefell when it was first decided but do they care enough about the issue to overrule it?

Posted by: Jr | Jun 28, 2018 6:23:06 AM

@Chicago Burger King:

This law has *not* been upheld by lower courts, thus far. And it almost certainly won't be; it will be enjoined under Roe. The question in this thread is whether the newly-constituted Supreme Court will overrule Roe and uphold the law. I'm suggesting they very well might. (It seems you think otherwise.)

I specifically mentioned the Iowa law because AtTWK had suggested that *even if* the Court overrules Roe, states will not outlaw first-term abortion. Here's a state where they already have.

Posted by: Yesteryear | Jun 27, 2018 11:10:39 PM


Yes, and states have had gun-control laws that outlawed handguns, and the supreme court threw those out too after they were upheld by lower courts, just like they will the iowa law. That's what the Court does is reverse lower-court rulings.

Posted by: Chicago Burger King | Jun 27, 2018 10:24:37 PM

@All the Things We Know, TJM:

In early May, Iowa enacted a law that prohibits abortion when a fetal heartbeat can be detected via abdominal ultrasound, i.e., at 7-8 weeks. A court temporarily enjoined the law, but it could make its way to SCOTUS. And it could be upheld.

Posted by: Yesteryear | Jun 27, 2018 9:54:44 PM

@All The Things We Know: then I suppose that's just further evidence that Roe won't be missed as badly as everyone seems to think.

Posted by: TJM | Jun 27, 2018 9:36:21 PM

Why didn't Obama include a federal right to have an abortion in ObamaCare? Would that have made the law too long?
Does the Commerce Clause only include the power to force people to do something, but not the power to give people the right to do something?

Posted by: In Praise of ObamaCare's folly | Jun 27, 2018 6:54:59 PM

The democrats promised us that Garland would not overrule Heller under any circumstances. If we know Garland wouldn't overrule Heller than we can be certain that Gorsuch will not overrule Roe.

Even if Roe is overruled, every state will continue to allow first-term abortion (which is 90% of abortions).

Posted by: All the Things We Know | Jun 27, 2018 6:52:50 PM

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