Substance in the Guise of Fomalism: How the Roberts Court Plans To Undermine Fundamental Rights

This is an excellent piece by Leah Litman discussing the majority ignoring an egregious Establishment Clause violation in Ray and the Kavanaugh dissent that would have effectively allowed the 5th Circuit to overrule Whole Woman’s Health (and therefore, for all intents and purposes, Roe v. Wade):

Ray and June Medical are not really about the district court’s general role as fact-finders.   They are, instead, about the factual, procedural, and equitable standards that courts hold different kinds of plaintiffs to—who they indulge, and who they hold to increasingly insurmountable or prohibitively difficult standards. In both Ray and June Medical Services, some Justices indulged implausible and unsupported factual inferences in order to force certain plaintiffs out of court—capital defendants and abortion providers—under the guise of procedure.

In both cases, the Justices used procedural rules that were nominally divorced from the substance of the underlying claims to force those plaintiffs out of federal court, and risked egregious, irreversible constitutional violations in the process. In Ray, the procedural rule concerned when litigants must seek equitable relief, and what sorts of delay federal courts should hold against a capital defendant. The Court concluded that a prisoner’s small delay outweighed the risk that he was about to be executed without his religious counsel and confidante, even though prisoners who held other religious beliefs would have been allowed their religious counsel and confidantes.  And once he was executed, there was no going back and fixing it—the harm was irreparable.

In June Medical, the procedural considerations that Justice Kavanaugh pointed to were about facial challenges, and the fact that the plaintiffs were challenging the law were it was going to be enforced. But that procedural posture did not change the likelihood that doctors could obtain admitting privileges, given that some had been trying to do so for over five years, and the fact that the criteria for obtaining admitting privileges had very little to do with doctors’ qualifications and an awful lot with objections to abortion, and criteria that would screen out abortion providers.  And the risk of irreparable harm was very apparent in light of the experience from Whole Woman’s Health—when clinics or doctors are at risk of not complying with the law, they will shut down, and may never reopen.  And Justice Kavanaugh didn’t care.

That the Justices invoked procedural rules in Ray and June Medical should not obscure the fact that those nominally procedural rules and their application were deeply enmeshed with substantive considerations—what burdens of proof and inferences they would hold particular litigants to, and what risks of what kinds of constitutional violations they would tolerate. John Dingell, as always, was right.

And lest you derive too much optimism from Roberts refusing to join Kavanaugh’s approval of the 5th Circuit’s nullification, remember that the Alito dissent he joined in Whole Woman’s Health was a quintessential example of an opinion that was a substantive denial of a critical rights claim in the mask of a modest procedural holding (a longtime Alito specialty.)  It is far more likely that Roberts wants the Supreme Court itself to effectively overrule WWH than allow the Fifth Circuit to nullify it than that he’s suddenly changed his mind, although it remains true that Roberts probably prefers slowly strangling Roe to death than quickly and explicitly overruling it.