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Thursday, January 20, 2022

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

Posted by Howard Wasserman on January 20, 2022 at 06:40 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Yes Baker v. Nelson.

Justice Kennedy declared in his majority Obergefell opinion that legalizing SS marriage required overturning Baker v. Nelson. From p. 23:

"Baker v. Nelson must be and now is overruled . . ."

Posted by: Ojibwe Joe | Jan 21, 2022 2:38:31 PM

To be clear, the exact SCOTUS action in respect to Baker v. Nelson was that they dismissed the appeal "for want of a substantial federal question."

Posted by: Joe | Jan 21, 2022 1:42:04 PM

"overturning state laws and SCOTUS precedent"

What "SCOTUS precedent"?

Baker v. Nelson? A summarily upheld w/o opinion case?

It is not clear how striking down laws against same sex marriage, especially after decades of intervening Supreme Court opinions (especially U.S. v. Windsor), actually directly "overturned" SCOTUS precedent.

Baker v. Nelson, to take but one of many things, did not deal with sexual orientation discrimination. Consider how Justice O'Connor, who joined Bowers v. Hardwick on substantive due process grounds later joined Lawrence v. Texas using equal protection without agreeing with the majority on overturning Bowers.

There was a clear opening here to strike down the anti-same sex marriage laws, even if one thinks it is not a compelling one.

On the other hand, Planned Parentood v. Casey is clear precedent, and even if Roberts' fifth vote in a 2020 case somehow watered it down, it clearly did not go as far as the Texas law did. The two situations are not the same.

Posted by: Joe | Jan 21, 2022 1:10:21 PM

Except: 1) No lower court screwed around with procedure in those cases; 2) those lower courts decided the substantive legal issue. If the Fifth Circuit had declared the law valid in anticipation of overturning Roe, the analogy works. Not this.

Posted by: Howard Wasserman | Jan 21, 2022 12:38:19 PM

If indeed the inferior federal court is getting out in front of SCOTUS (which is unclear), it is reminiscent of the same-sex marriage issue, where lower federal courts were overturning state laws and SCOTUS precedent in anticipation of the 5-4 Obergefell opinion, which Sotomayor joined.

That is small consolation to those whose legal universe consists wholly of Roe v. Wade uber alles.

Posted by: Ojibwe Joe | Jan 21, 2022 12:23:41 PM

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