Today in Supreme Court History: September 1, 1823

9/1/1823: Justice Smith Thompson takes judicial oath.

Justice Smith Thompson

Comments

[Dan Schiavetta]

Whole Woman's Health v. Jackson, 141 S.Ct. 2949 (decided September 1, 2021): Court denies motion to stay enforcement of Texas law S.B.8 (allowing bounty hunting against women getting perfectly legal abortions); admits "serious questions" as to Constitutionality of the law but procedurally nobody is in the case who can be stayed; the State does not enforce this law. Roberts, Breyer, and Kagan dissent, arguing that the status quo ante should be preserved so that the question of whether Texas has the power to even pass such a law could be litigated; Breyer, Sotomayor and Kagan add that the law itself causes imminent harm to women who would be exercising a Constitutional right (this was before Dobbs removed that right); in a separate dissent these three call the Court's order "stunning": as to "a flagrantly unconstitutional law engineered to evade judicial scrutiny" the majority "buries its head in the sand"; in yet another dissent these three note that the Court is making its decision without full briefing after less than 72 hours

Divans v. California, 439 U.S. 1367 (decided September 1, 1978): Rehnquist denies stay of murder trial; defendant argued Double Jeopardy, alleging that in earlier trial prosecution deliberately provoked mistrial, but produces no actual evidence of prosecutorial misconduct

General Council on Finance and Administration of United Methodist Church v. Superior Court of California, 439 U.S. 1355 (September 1, 1978): Rehnquist denies stay of California lawsuit against Illinois based church for fraud and securities violations arising out of operation of hospitals and retirement homes; California court's analysis of long arm jurisdiction was not clearly wrong, this was not an intrareligious dispute so court involvement did not violate First Amendment; and delay in seeking this stay was "inexcusable"

[The Margrave of Azilia]

The Whole Woman's Health case could have been dealt with by acknowledging that the law chilled abortions, but since there is no constitutional right to abortion, such chilling is perfectly constitutional.

Instead, they insisted on approving the controversial enforcement procedure which could be used against *real* constitutional rights.

[Dan Schiavetta]

That conclusion could not have been reached because at the time there was a Constitutional right to abortion. You are correct though about the implications of this reckless decision as to other rights.

[Rev. Arthur L. Kirkland]

At some point, captcrisis, your demonstration of the inadequacy of the professional work of Profs. Blackman and Barnett becomes sadistic, a humiliation beyond purpose.

I rarely am a candidate to be the defender of those two, but I sense the humiliation of Randy Barnett and Josh Blackman has exceeded its value. How many more repetitive laps are to be inflicted on them? Barnett and Blackman should have the self-awareness to quit digging, but that does not excuse captcrisis entirely.

[Dan Schiavetta]

I'm not being sadistic (well, only a little bit). I do these summaries because they're fun to do. Even these out-of-session motion decisions illustrate how the various members of the Court behaved as Circuit Justices, and some of the orders touch on big issues. Even when they don't, as a practicing lawyer I like seeing how they deal with procedural matters.

[Rev. Arthur L. Kirkland]

You are doing the right thing, from several perspectives. Thank you for doing it.

[John F. Carr]

Here is the docket for the "shadow docket" part of the case:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a24.html

August 30: WWH et al. apply for emergency relief
August 31: Judge Jackson et al. respond
September 1: Decision announced

Despite the accelerated schedule, the December 10 decision after further briefing and oral argument did not call into question the preliminary refusal to reverse the Fifth Circuit. The only viable claim after the merits decision was for an injunction to prevent professional discipline against abortion providers. An injunction turned out to be unnecessary because no such discipline was authorized by state law.

The state court lawsuit against the private right of action is ongoing, as far as I know. And the stakes are high: the fate of California's private right of action against people who have bad guns is tied to the fate of Texas' private right of action against people who perform abortions. The California law by its own terms is ineffective if the Texas law is invalidated by a court.

[Area Man]

“allowing bounty hunting against women getting perfectly legal abortions”

That’s simply not true. Women seeking or having an abortion were specifically exempted from any liability. That’s still true of SB8 and the Texas’s criminal abortion law now in effect.

[Dan Schiavetta]

Sorry, I stand corrected. The woman can't be sued -- but her mother can, or brother, or sister, or boyfriend, i.e., anyone who drove her to the clinic.

[DaivdBehar]

Only West Virginia has a desuetufde law. I support an amendment, Any rule that has not been enforced in 5 years is repealed.

[F.D. Wolf]

Thompson received a recess appointment to the Court from President Monroe on September 1, 1823. He was formally nominated since December 5 and was confirmed by the Senate on December 9. He was the first new member of the Court since Joseph Story had been confirmed in 1811. That 12-year gap is the longest in Supreme Court history. In fact, my research (which consisted of skimming the "list of justices" Wikipedia page), shows the only comparable gap was the 11 years between the confirmation of Stephen Breyer in 1994 and that of John Roberts in 2005. I counted one 7-year gap and four 6-year gaps.

That unusually long gap is significant, in that the Thompson confirmation might be said to signal the end of an era, the "golden age" of the Marshall Court, one marked by much unanimity. The next seven years would bring three new justices and a more fractious court. Thompson might be described as something of a bridge between the Marshall Court and the Taney Court, and he exhibited some of the jurisprudential tendencies that would be hallmarks of the Taney Court: more deference to executive and legislative acts, a broader view of the states' "police power", including their abilities to alter contracts over the once-sacred Contracts Clause (today a virtual dead letter), and a tendency to view the states' commerce power as concurrent with the federal government. In sum, he began the transition to a "states' rights" Court.

[Dan Schiavetta]

thanks

[F.D. Wolf]

And a thank you to you as well for your posts.

[Dan Schiavetta]

If the prosecution deliberately provokes a mistrial, the defendant cannot be retried.

This is as opposed to a nondeliberate mistrial, or a hung jury, where a new trial can be ordered.

[The Margrave of Azilia]

Weirder things have happened. For example, there was once a case where a woman had a child before the Supreme Court decided her case, but that didn't stop the Court from saying the woman would have had the right to abort the child in the womb.

It seems procedural weirdness is hardly unknown in abortion cases.

[Dan Schiavetta]

It's not just abortion. It's any situation where by the time the appellate process has run the issue has disappeared. Another example is affirmative action litigation over whether one should have been admitted to college. The phrase for this is "capable of repetition yet evading review".

[The Margrave of Azilia]

Yes, it's an intriguing doctrine, and I can see situations where it would come up.

But I recall a case where some guy was manhandled by the police and tried to get it into court, I believe, for an injunction, but this was refused because it didn't come into the capable-of-repetition category. No proof he'd get manhandled again, so no relief.

So I admit I'm not sure when they invoke this doctrine.

[Dan Schiavetta]

You might be thinking of City of Los Angeles v. Lyons, 461 U.S. 95 (1983), where the Court refused to order an injunction against the LAPD's chokehold policy. The rationale was that the chokehold on plaintiff was already in the past, and there was no identifiable future plaintiff who would have standing to move for an injunction. As Thurgood Marshall put it in dissent, under the Court's reasoning, the LAPD could have a policy to shoot and kill every tenth suspect arrested, and the Court would not be able to do anything about it.

[The Margrave of Azilia]

Perhaps it had something to do with different attitudes on the Court toward the police? Marshall pre-court had clients on the wrong end of police misbehavior, while other justices had more positive experiences.

And a similar thing may have been going on with abortion. The justices wanted to proclaim a right to abortion and were happy to invoke liberal standing rules to get to that result.

[John F. Carr]

Short Circuit a few years ago had a case involving a Kansas cop who made an unconstitutional (profiling) traffic stop. The court pointed out it was his second offense. He had been the rights violator in a similar case 20 years earlier. As far as I know the state paid his bills and he suffered no consequences.