The Volokh Conspiracy

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New Essay in Newsweek: "In Texas Abortion Case, Kavanaugh and Barrett Caved to Judicial Supremacy."

"In short order, the two newest members of the Court have sipped from the trough of judicial supremacy."


I wrote an essay at Newsweek about the S.B. 8 oral arguments. It is often precarious to read the tea leaves, but the brew here was quite strong. And my prognosis is bleak. The piece is titled, In Texas Abortion Case, Kavanaugh and Barrett Caved to Judicial Supremacy.

Here is the introduction:

On Monday, the U.S. Supreme Court heard oral arguments in two challenges to S.B. 8, Texas' new abortion law. The "fetal heartbeat" statute allows private citizens to sue those who perform, aid or abet abortions. The government itself is expressly barred from enforcing the law. Texas cleverly made it difficult, if not impossible, for abortion providers to block the enforcement of S.B. 8.

Yet, two members of the Court seem prepared to creatively jettison long-standing precedent to stop the law nonetheless. Regrettably, Justices Brett Kavanaugh and Amy Coney Barrett have succumbed to judicial supremacy. A defeat here for Texas will be short-lived. But the long-term impact of this judicial descent will endure for a generation.

From the conclusion:

Three decades ago, Justice Sandra Day O'Connor observed that "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion." She was right. When abortion is at issue at the Supreme Court, all bets are off.

In time, Justices Kavanaugh and Barrett may very well produce rulings that advance judicial conservative principles. But arguments yesterday paint a bleak portrait of the road ahead. Conservative lawyers, and Federalist Society members in particular, should no longer feel compelled to apologize for or defend these two jurists.

The Texas case is certainly not the first, or the last straw. In case after case, Justices Kavanaugh and Barrett have denied review to resolve pressing issues concerning the free exercise of religion, freedom of speech and other core constitutional areas. And where they have ruled, they drag their feet with the veil of moderation. Yet with abortion, they are prepared to bend over backwards, and modify long-standing precedent, to ensure expeditious review is permitted. Barely two months ago, both jurists allowed S.B. 8 to go into effect. They may now regret those rulings.

In short order, the two newest members of the Court have sipped from the trough of judicial supremacy

For those who wish to read more about judicial supremacy, my article on Cooper v. Aaron may be of interest.

I will have much more to say about this case–in particular the significant problems with permitting suit against the clerks.